Higdon-Family Law Outline-Spring 2014

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Family Law
Higdon - Spring 2014
Introduction
Marriage is a legal status
Why does the state want to regulate family units?
o Property transfers
o Taxation
o Family unit stability helps make a stable society
o Police power
Marital Agreements
History
o Premarital and prenuptial are the same thing
o Used to not be enforceable, but were allowed concerning inheritance rights.
E.g., man had kids from a prior marriage and wanted to make sure everything went to his children and not his
second wife
State did not want prenups because they thought it encouraged divorce
In the 70s that changed.
Getting closer to gender equality, women getting their own stable income
Sexual revolution and wanting multiple partners.
Divorces became more acceptable in society
Co-habitation.
o Made marriage more appealing for people who were cohabiting because they could divide their property just as easily. Many
people didnt want to get married because of the property division.
A premarital agreement is valid if:
o (1) it provides full disclosure
This does not mean detailed disclosure.
A spouses knowledge of the other spouses financial status can serve as a substitute for disclosure.
o (2) it is fair and reasonable; and
The modern trend in some places remove the fair and reasonable requirement
o (3) it is entered into voluntarily by both parties
no fraud, duress, coercion, or overreaching.
o Other requirements:
Offer
Acceptance
Capacity
Statute of frauds
Consideration
In general, a premarital agreement will be enforced against an individual who entered into it freely, without fraud, duress, coercion,
or overreaching, and if that individual had either full disclosure or knowledge of other spouses property before entering into the
agreement.
o Some states scrutinize the reasonableness of the agreement when it was entered into or at the time of the marriage ends in
death or divorce.
o States also take different positions on whether married couples may enter into postmarital agreements regarding their
property and support rights.
Simeone v. Simeone, 581 A.2d 162 (Pa. 1990) [Strict Contract Approach]
o Prenuptial agreements are contracts, and as such, should be evaluated under the same criteria as are applicable to other
contracts.
o The knowledge of the parties and the reasonableness of their bargain, is inappropriate. Prenuptial agreements are contracts,
and, as such, should be evaluated under the same criteria as are applicable to other types of contracts. Absent fraud,
misrepresentation, or duress, spouses should be bound by the terms of their agreements.
o However, the parties to prenuptial agreements are in relationships of mutual confidence and trust that calls for a disclosure
of their financial resources. The disclosure need not be exact so long as it is full and fair. Parties are in a confidential
relationship.
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Notes
In contract law, there is a presumption that people will act rationally when dealing financially, but in family law,
people act more emotionally and may not act rationally. That is why there is a higher duty of disclosure that is
irregular to contract law.
The wife knew of the prenup well in advance, so the court did not believe that she was under duress by signing it on
the eve of the wedding.
Some courts allow for change in circumstances. There is some concern that this causes too much uncertainty.
States interest in prenuptial agreements
o Parties in a prenuptial agreement can be left high and dry.
o State does not want to have to provide for these people.
o Lots of time can lapse before a prenuptial agreement comes into play, so it needs to be more scrutinized.
o The people entering into the agreement are not in the best position to look after their economic interest, because they are
thinking with their hearts and not their heads.
Agreements Concerning Inheritance Rights
o A premarital agreements must clearly address inheritance rights in order to be effective as a waiver of these rights
Postnuptial Agreements
o Many states allow married couples to enter into contracts concerning their property and finances in the event of divorce.
o The test for enforceability of postnuptial agreements is similar to that applied to prenuptial agreements.
o In some states, they are not enforceable or are subject to a more strict review.
Statute of Frauds
o Prenuptial Agreements are subject to the statute of frauds
o Requires promises made in contemplation of marriage, other than promises to marry, to be in writing and signed by the party
to be charged.
o A couples oral prenuptial agreement to keep their finances separate, fully performed during the marriage, was enforced
under the part-performance exception to the statute of frauds.
Uniform Premarital Agreement Act 6
o (a) A premarital agreement is not enforceable if the party against whom enforcement is sought provides:
(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable (substantively unfair) when it was executed and, before execution of the
agreement, that party:
(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other
party;
(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or
financial obligations of the other party beyond the disclosure provided; and
(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or
financial obligations of the other party
(b) If the provision of a premarital agreement modifies or eliminates spousal support and that modification or
elimination causes one party to the agreement to be eligible for support under a program of public assistance at the
time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other
party to provide support necessary to avoid that eligibility.
(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
o Easier to proceed under voluntariness.
o Factors for Voluntariness include:
Lack of coercion, intimidation, or undue pressure
Some measure of knowledge of the terms of the agreement and the property affected
The timing of the agreement in relation to the wedding
Adequate opportunity to consult with independent counsel
Relative sophistication of the parties
Sufficient disclosure of assets
Changes in Circumstances and Spousal Support
o Some courts consider whether enforcement of a premarital agreement would be unconscionable based upon circumstances
existing at the time of a divorce
o Under UPAA, there is a limited set of circumstances, where one party would qualify for govt assistance
o Some states have not adopted UPAA, and have more liberal standards, but they say that the circumstances have to be
unforeseeable.
Choice of Law
o To assure that the law of a particular state will govern the agreement, the drafters can include a choice of law provision,
which usually will be given effect.
UPMAA Scope of Marital Agreements
o Courts are hesitant to enforce agreements dealing with support or other conduct during the marriage. This reflects courts
unwillingness to adjudicate marital disputes.
Before parties are married, they can say they arent going to do it, but during marriage, there can be undue pressure
because they can threaten to divorce you.
o Cant affect the right to child support.
o An agreement may provide for such matters as choice of abode, freedom to pursue career opportunities, upbringing of
children, etc.
o A term in premarital agreement or marital agreement which defines the rights or duties of the parties regarding custodial
responsibility is not binding on the court. This is decided in the best interest of the child
o You can add any type of provision you want (order of housework done, sex, etc.) but the court isnt going to get into that
stuff. They are not going to be able to be enforced.
KNOW
o History
o Common law
o Know how it is not as stigmatizing as it once was because of the 70s (60s?) and the sexual revolution
o 3 approaches
Strict contract approach
UPAA approach with some change in circumstances
Liberal approach that allows for a broad change of circumstances where the change is unforeseeable.
o Bottom line How removed from contract law do we want to get and why for policy reasons?
o Reasons we treat these agreements differently
Subject matter state has an interest in the division of property and well-being of individuals (because they dont
want to take care of people left high and dry)
Not usually done at arms length, people do not behave rationally and are not thinking about economic interest
These agreements do not come into play until many many years in the future if at all. These are reasons why courts
may stray away from the strict contract approach
A few things that should go into a good agreement (Not exhaustive)
o Recommend an attorney
o Tell them to go get whoever they want and reimbursement on the legal fees
o Give them as much time as possible to review the doc. Dont spring it on them last minute. Higdon said he would give 6
months. The most lenient statute he has seen was 30 days.
o Choice of law provision
o Full disclosure
o Give her enough money so the court cant say the agreement is unconscionable
o Document all discussions
o Put something in the agreement that you know they are going to want to get change (something small). This way they will
come back and you can change it. That way it is shown that you changed everything they wanted to be change. Makes you
look reasonable
Common Law and Punitive Marriage

These doctrines serve an important remedial purpose, allowing courts to extend the legal rights and obligations of marriage to couples
that behaved as if they were married.
Common law marriage served to legitimate the children of couples who had not complied with marriage licensing requirements.
Cohabitation alone, even for an extended period of time, does not give rise to a common law marriage in any state.
o The couples must have an agreement to be married, expressed in words of the present tense.
o This is often proved indirectly by circumstantial evidence of cohabitation and repute that the couple lived together; and held
themselves out in the community as husband and wife.
Fewer than a dozen jurisdictions in the United States still permit common-law marriage.
o In states that abolished common law marriage recently, these issues still arise with respect to marriages entered in before the
date when it was abolished.
o States that never permitted it or abolished it a long time ago still recognize common-law marriages from other states under
the lex loci contractus rule.
Lewis v. Anderson, 173 S.W.3d 556 (Tex. App. 2005)

o A common law marriage may be proved by evidence that:
1) the parties agreed to be married and after the agreement;
2) they lived together as husband and wife; and
3) they represented to others (community) that they were married.
o May be proven by direct or circumstantial evidence. Evidence of cohabitation and representation that the couple is married
may constitute circumstantial evidence of an agreement to be married, but the circumstances of each case must be determined
based upon its own facts.
o The elements may occur at different times, but there is not a common law marriage until all three exist.
o Notes
Require people to live together and represent that you are married because we are really concerned about fraud.
o Must be 18?
o Texas statute- (d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the
person is presently married to a person who is not the other party to the informal marriage or declaration of an informal
marriage, as applicable.
In some states, the only thing that is required is an agreement to be married. But this is hard to prove, so they say that instead of being
a requirement, cohabitation and holding themselves out are evidence of the agreement to be married.
Arguments for retaining or doing away with common law marriage
o Retaining
Its a vehicle to lead to equitable results and avoid victimization
Avoid legal costs
Avoiding health related aspects of marriage
Protects poor and ignorant
Can protect an independent spouse from an impediment in the marriage.
o Doing away with
Fraud
Avoid confusion and litigation
Modern society has eliminated the need
Avoid immoral sexual sin (can go both ways depends on how you look at it)
Renshaw v. Heckler, 787 F.2d 50 (2nd Cir. 1986)
o Agreement does not have to be made in a state where common law marriage is valid.
o A new agreement is not required in the state that does recognize common law marriage.
o They traveled frequently through Pennsylvania, but domiciled in New York.
o This case is unusual and probably shouldnt be used as precedent. Unique circumstances.
Proof of a New Agreement
o In Travers v. Reinhardt, the parties lived together in various states that did not recognize common law marriage before
moving to New Jersey, which did recognize common law marriage. The Supreme Court held that they contracted a common
law marriage in New Jersey, although there was no evidence of any new agreement to be husband and wife made after
moving to that state, and although the only lived there for a short time before the husband died.
Choice of Law and Common Law Marriage p. 97
o Must be domiciled in common marriage state: States with strong public policy against common law marriage do not
recognize common law marriages contracted in other states if the parties maintained their domicile in a non-common law
marriage state at the time they were alleged to have contracted a common law marriage.
Held that four visits to states which recognized common law marriage (24 days spent in those states) did not produce
a common law marriage, despite the fact the parties were together for 38 years and had 3 children.
o Must have a substantial connection to a common marriage state (house, property, etc.): Another group of states recognize
out-of-state common law marriages by their domicilaries so long as the parties have an established place of abode in the
common law marriage state
A man and woman domiciled in New Mexico did no succeed in contracting a common law marriage during several
business trips and pleasure trips to Texas and Colorado, because the couple was not domiciled in a common law
state.
o No domicile or connection required: States that take the New York approach recognize common law marriages contracted in
a state where the parties have no domicile or substantial connection.
Global View

o
Individuals sometimes argue that cohabitation relationships that are accorded legal effects in other countries, such as
concubinage in Mexico, should be recognized as common law marriage in the US. Courts have consistently refused to do this
unless the legal status under foreign law confers all the rights and benefits of marriage.
Notes
o
o
o
Tennessee doesnt recognize common law marriage.

However, the state of Tennessee will recognize common-law marriages from states where it is recognized.
There is no such thing as common law divorce.
Fraud would be too easy
Going to court over divorce helps the court ensure that nobody is going to get taken advantage of.
Would create a lot of confusion.
Putative Marriage
o Purpose of the doctrine is to protect parties to invalid marriages.
o Putative marriage occurs when a marriage is contracted at a time when an existing impediment makes the purported marriage
either void or voidable and when one or both of the parties are ignorant of the impediment.
A party who entered the marriage in the good faith belief that it was valid is entitled to assert financial or property
claims based upon the marriage.
If the impediment is later removed, the marriage becomes fully valid.
o Widely recognized in many states.
o Uniform Marriage and Divorce Act 209 defines putative spouse as any person who has cohabited with another to whom he
is not legally married in the good faith belief that he was married to that person.
Williams v. Williams
o The putative spouse doctrine has two elements:
(1) a proper marriage ceremony was performed; and
(2) one or both of the parties had a good-faith belief that there was no impediment to the marriage and the marriage
was valid and proper.
o Once a spouse learns of legal impediment to marriage, the putative marriage ends.
Unconfirmed rumors or mere suspicions not enough
Must be a certain or authoritative knowledge of some legal impediment.
When a person receives reliable information that an impediment to marriage exists, the individual cannot ignore the
information, but, instead, has a duty to investigate further; persons cannot act blindly or without reasonable
precaution.
o Putative spouse doctrine does not conflict with state policies in refusing to recognize common-law marriages or palimony
suits; in the putative spouse doctrine, the parties have actually attempted to enter into a formal relationship with the
solemnization of a marriage ceremony, a missing element in common-law marriages and palimony suits.
o Spousal Support
Putative spouse doctrine does not permit an award of spousal support in the absence of bad faith, fraud or statutory
authority.
Putative spouse doctrine does not permit an award of spousal support when both parties act in good faith.
While some states have extended the doctrine to permit spousal support awards, they have done so under the
authority of state statutes.
o Good faith has been defined as an honest and reasonable belief that the marriage was valid at the time of the ceremony.
Good faith is presumed.
Notes
o An annulment just means that you are asking the court to declare the marriage invalid.
o Burden is on spouse trying to prove there wasnt good faith. This is because the court wants to bend over backward to have
marriages valid because we dont want anyone victimized and we dont want to leave children illegitimate.
Cohabitation Relationships
Introduction
o Things became more liberal in the 60s
o Cts. Thought this might encourage marriage because its not as much of a commitment.
o Types of Jurisdiction
No cohabitation agreements
Expressed cohabitation agreements
Implied cohabitation agreements
Agreement doesnt matter, does the relationship look marriage like? Metricious relationship.

The point of these cohabitation agreements is that the parties know they arent married. Because thinking you are married
isnt a requirement, gay couples can make out a case for recovery.
Marvin v. Marvin
o Intro
One of the pieces of the Marvin case is putting monetary label on what had previously been labeled as womans
work.
People were worried that it undermine the sanctity of marriage.
There was also a worry that there was a liberation of we can just live together and not get married. So this case made
it to where you cant escape being responsible for the others well-being
o The courts should enforce express contracts between non-marital partners except to the extent that the contract is explicitly
founded on the consideration of meretricious (prostitution) sexual services.
The fact that a man and woman live together without marriage, and engage in a sexual relationship, does not itself
invalidate agreements between them relating to their earnings, property, or expenses. Neither is such an agreement
invalid merely because the parties may have contemplated the creation or continuation of a non-marital relationship
when they entered into it.
Agreements between non-marital partners fail only to the extent that they explicitly rest upon a consideration of
meretricious sexual services.
o In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that
conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding
between the parties. A non-marital party may recover in quantum meruit for the reasonable value of household services
rendered less the reasonable value of support received if he can show that he rendered services with the expectation of
monetary reward.
o A contract between non-marital partners, even is expressly made in contemplation of a common living arrangement, is
invalid only if sexual acts form an inseparable part of the consideration for the agreement. A court will not enforce a contract
for the pooling of property and earnings if it is explicitly and inseparably based upon services as a lover. Even if sexual
services are part of the contractual consideration, any severable portion of the contract supported by independent
consideration will still be enforced.
o Adults who voluntarily live together and engage in sexual relations may agree to pool their earnings and to hold all property
acquired during the relationship in accord with the law governing community property; conversely they may agree that each
partners earnings and the property acquired from those earnings remains the separate property of the earning partner. So long
as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they
choose.
o Notes
As long as the contract isnt based solely on sex, its okay.
Court said you can make an expressed agreement and an implied contract
Implied contract would be shown by conduct. By showing that their contract implied an agreement and can
give the party to equitable remedies.
They couldnt be a putative marriage
To be a putative spouse, there has to be a ceremony
There must be a good-faith belief that the marriage is valid.
Encouraged marriage because:
More benefits to being married
Its murky, so a party might want to get married and get a prenup so they know where they stand in regard
to the property distribution.
Most states will now enforce an express agreements, but
Most require it to be in writing
Cant be explicitly for sex
Express Contracts
o Marvin holds that unmarried cohabitants may make enforceable contracts concerning their financial and property affairs.
o Courts in a few jurisdictions have refused to enforce cohabitation contracts, however.
o A cohabitation agreement is enforceable so long as it conforms to the ordinary rules of contract law.
Implied Contracts and Equitable Relief
o Second branch of Marvin holds that even in the absence of any contract, relief may be granted based on an implied contract
theory or on equitable grounds, such as implied partnership, constructive trust, resulting trust, or quantum meruit.
o Courts in other states disagree on whether to enforce implied agreements between cohabitants.
o In some cases, it is unclear whether the court is finding an implied-in-fact or an implied-in-law contract.
o

Claims for palimonyongoing support payments after the termination of a cohabitationare recognized in California on
an implied contract theory but the overwhelming weight of authority around the country rejects this kind of claim.
o Notes
Most courts have said that they are not going to allow these, because
One court points to the difficulty of proof of implied agreements, reasoning that Marvins rationale
regarding such agreements is conceptually so amorphous as practically to defy equitable enforcement
Morone, 413 N.E.2d at 1157.
The same court also criticizes Marvins recognition of implied agreements as being inconsistent with
legislative abolition of common-law marriage.
o The only difference between cohabitation agreements and common law marriage is maybe federal
rights given to common law spouse.
o Does allowing the agreements sort of make a de facto, back-door common law marriage? There is
at least the argument it does.
Still another court rejects Marvin, arguing that regulation of the rights of nonmarital parties is better left to
the legislature because of its superior investigative and fact-finding facilities to determine public policy.
If you are in a successful relationship with someone, there are some things you should be doing for them
just out of love. So, it is hard for a court to say this was made out of love and this was made out of the
contract.
o Some states have enacted statutes of frauds to require that cohabitation contracts must be signed in writing.
o These statutes may not bar restitution claims, however.
Same-Sex Couples and Cohabitation Agreements
o Courts generally provide the same range of remedies to same-sex cohabitating couples that are available to opposite-sex
couples.
o Cohabitation agreements are especially important to these couples because they cannot marry in some jurisdictions.
Porter v. Zuromski
o The parties decided to purchase a home together. Because they were unable to qualify for a loan jointly, they agreed the title
holder would apply for a mortgage loan in his name only. The title holder paid a down payment of $ 4500 from the parties'
joint checking account. The joint owner paid $ 3700 for her contribution. The parties agreed that they would act as joint
owners of the property and the joint owner would pay half the expenses. The parties made significant improvements to the
house. The appellate court held that it was not a palimony case. Rather, the joint owner's claim arose from her financial
contributions to the property and the unjust enrichment that would consequently occur if the title holder retained sole title to
the house. While the down payments were not equal, the trial court did not focus, in myopic fashion, on the down payment
for the purchase of the home. The evidence supported the imposition of a constructive trust where the title holder admitted
never intending to put the joint owner's name on the property. Such conduct smacked of misrepresentation if not fraud. There
also was no doubt that a confidential relationship existed.
o A constructive trust is a remedy that converts the holder of legal title to property into a trustee for one whom in good
conscience should reap the benefits of the property. Its purpose is to prevent the unjust enrichment of the holder of the
property. This remedy applies where a property has been acquired by fraud, misrepresentation, or other improper method, or
where the circumstances render it inequitable for the party holding the title to retain it.
Ordinarily, such factors must be shown by clear and convincing evidence, but the rules change once a confidential
relationship is shown
Then, there is a presumption that confidence was placed in the dominant party and that the transaction complained
of resulted from fraud or undue influence and superiority or abuse of the confidential relationship by which the
dominant party profited.
The presumption shifts the burden to the to show fairness and reasonableness in the transaction.
o Zs monetary and non-monetary investments in the property demonstrated that she clearly relied on Porters representation
that she would become co-owner of the house. These circumstances render it inequitable for Porter to retain exclusive title
and would justify imposition of a constructive trust.
Constructive trust v. resulting trust? p. 185
o Constructive trust
A constructive trust is an equitable remedy resembling a trust imposed by a court to benefit a party that has been
wrongfully deprived of its rights due to either a person obtaining or holding legal right to property which they
should not possess due to unjust enrichment or interference
o Resulting Trust
Someone takes property in his or her name, but they are basically holding it for someone else and it will be
transferred to someone else or they will get a part of it.
o
So in the above case, he wasnt buying the property for himself, he was buying it as a trustee for the two of them.
Restitution-Based Remedies
o In many cohabitation cases, courts have required compensation for one partys financial investments in the others property
or business
o Courts also routinely order recovery in quantum meruit for services such as work for a partners business or on home
construction and renovation.
o Courts have generally refused to order compensation for such contributions as household services, paying household
expenses, raising or supporting children or stepchildren, or assisting with a partners career.
Gormley v. Robertson
o meretricious relationship doctrine applied to same-sex couples;
o Meretricious relationship is a stable, marital-like relationship where both parties cohabit with knowledge that a lawful
marriage between them does not exist; factors establishing a meretricious relationship include:
continuous cohabitation;
duration of the relationship;
purpose of the relationship;
pooling of resources and services for joint projects, and
the intent of the parties.
o Substantial evidence supported finding in property dispute between same-sex domestic partners that $40,000 was spent from
joint accounts on property retained by one woman and that this woman would be unjustly enriched if she were allowed to
retain all the property and to be liable for only half of the credit card debt, where evidence showed that women commingled
their funds, made joint purchases, and incurred debt.
o Notes
In this case, meretricious means a relationship that looks marriage-like.
So while other states look at the agreement, Washington looks at the relationship to see if it looks marriage-like.
The argument against this was that the relationship has to be marriage-like, and at that time same-sex couples
couldnt get married so its not marriage like. The court rejected this, because it said that one of the characteristics
about these types of relationships is that they know that they are not married.
Big takeaway is that instead of looking at contract, look at the relationship itself instead.
Notes
o Some states are broad and allowed expressed, expressed written, and implied contracts. Other states are narrow, and others
dont allow these types of contracts.
o You can enter into an agreement to keep things separate. Sort of like a reverse Marvin
o Short of not making an expressed agreement dont buy property together, dont comingle funds, dont hold yourself out as
married, etc. if you dont want to be liable to the person from cohabitation agreements. To fully protect yourself, you have to
make an express agreement, which doesnt make a healthy relationship. In some way, this encourages marriage with a
prenup.
o The fear that was produced by Marvin really hasnt been warranted because a lot of states dont allow implied agreements.
o Tennessee only allows expressed agreements.
Chapter 1: Marriage and Its Alternatives

Marriage is a legal institution, shaped and defined by state and federal laws that define the rights and obligations that flow from
marital status, and determine how individuals may enter into or exit from a marriage.
Con Law
o Originally, the Constitution was a limit of federal power
o However, the 14th Amendment has bound the states to the Constitutional rights
o Two Types of Due Process
Substantive
There are some rights that are so fundamental that the state cannot infringe those rights without meeting the
strict scrutiny test. Must show a compelling state interest that is narrowly tailored.
Procedural (not important here)
Procedures must be followed to take away my life, liberty, and property.
o Slowly through the 14th amendment, the court has incorporated the Bill of Rights through the 14th amendment.
o Equal Protection:
Those who are similarly situated should be treated equally.
So an 8 year old getting a drivers license is not similarly situated as a 16 year old, but a 16 year old black man is
similarly situated as a white 16 year old.

Type of Test
Rational Basis
o Applicability: Interference with economic interests or discrimination on the basis of non-suspect
classifications Marriage and Privacy
o Judicial Analysis: Presumption of constitutionality. Government action must have a rational
relationship to a legitimate government purpose.
o The plaintiff has the heavy burden of showing that the statute is unconstitutional and must negate
every reasonable basis upon which the classification may be sustained. So long as there is a
plausible policy reason for the classification, the legislative facts on which the classification is
apparently based rationally may have been considered to be true by the governmental
decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render
the distinction arbitrary or irrational.
Intermediate Scrutiny
o Applicability: discrimination on basis of suspect classifications like gender or illegitimate birth
o Judicial Analysis: In order to overcome the intermediate scrutiny test, it must be shown that the
law or policy being challenged furthers an important government interest in a way that is
substantially related to that interest and that the justification for the classification is genuine and
does not depend on brad generalization.
Strict Scrutiny
o Applicability: Interference with fundamental rights or discrimination on basis of suspect
classifications like race or national origin
o Judicial Analysis: Presumption of unconstitutionality. Government must show that the challenged
classification serves a compelling state interest and that the classification is narrowly tailored to
serve that interest.
o Classifications based on race, alienage, or national origin and those affecting fundamental rights
are evaluated under strict scrutiny. Presumed invalid and must be narrowly tailored to serve a
compelling governmental interest.
Reynolds v. United States (U.S. 1878)
Court rejected the argument that the First Amendment limited legislation criminalizing the practice of polygamy,
concluding that it was impossible to believe that the constitutional guaranty of religious freedom was intended to
prohibit legislation in respect to this most important feature of social life.
Griswold v. Connecticut (U.S. 1965)
Facts: Appellant gave information, instruction, and medical advice to married persons as to the means of preventing
conception against state law.
Married persons right to contraception: Married persons have the right to determine matters concerning birth
control without interference from the state. This guarantee has its foundation in the constitutional right to privacy.
Court invalidates that statute based on the recognition of a constitutional right to privacy. The Court reasons
that the statutory prohibition on the use of contraceptives (rather than their manufacture or sale) infringes
on marital privacy because enforcement would necessitate police searches of the bedroom.
Douglas writing for the majority reasons that the right to privacy is found in the penumbras formed by
emanations from those guarantees in the Bill of Rights that help give them life and substance.
o By reading all the constitutional rights together, there is an implied right to privacy.
o Under the 1st amendment, the constitution says that there is a right of association, even though it is
not stated explicitly.
o There is also a right against self-incrimination in the 5th and no unlawful search and seizure in the
4th which are rights to privacy against governmental invasion.
Concurrence: States that the right to privacy is in the 9th Amendment. Points out that the 9th Amendment was
intended to grant to the people those essential rights that are not specifically enumerated in the Bill of Rights.
Today: Neither the majority or concurrence view of the source of the privacy right is accepted today. Constitutional
doctrine since Griswold identifies the source of the right to privacy in the 14th Amendments Due Process Clause
(liberty).
Fundamental Right: Griswold points out that the right to privacy is fundamental. Constitutional doctrine accords
fundamental rights strict scrutiny review (i.e., restrictions on those rights must be necessary to a compelling state
interest.
Both the majority and concurring opinions emphasize the importance of marriage. Justice Douglas speaks of
notions of privacy surrounding the marriage relationship and the sacred precincts of marital bedrooms.
Notes
o
o
Background: This case was important because limiting the children poor had can help them economically.
Not having sex is just unrealistic. In addition, some married couples have complications in pregnancies &
there is a fear that comes along with a pregnancy if they could not prevent it with birth control.
The State was concerned with adultery, but the court said that the State has laws against adultery and
fornication so that is already safe-guarded.
Loving v. Commonwealth of Virginia (1967)
The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial
discriminations. Under the Constitution, the freedom to marry or not marry, a person of another race resides with the
individual and cannot be infringed by the State.
Notes
Unconstitutional to prohibit interracial marriage under 14th Amendment Due Process and Equal Protection
grounds
Equal Protection
o Similarly situated parties have to be treated equally.
o For race, strict scrutiny applies.
o The right to marry the person of your choice is a fundamental right, so strict scrutiny applies.
o The reason this is such an important distinction is that, if the right is the right to marry the person
of your choice, then it gives a lot of ground to same sex marriage.
o Side Note: The law only really being applied to whites, so it was not equally applied. The laws
purpose was to keep the white race pure. Thus, it was not being applied equally to equally situated
people so it was unconstitutional.
Why Gender is only intermediate scrutiny and race is strict
There is a lot of stuff in the constitution that where things are left for a vote. Thus, minority groups have a harder
time representing themselves, so we are going to review restrictions against them more.
On the other hand, women are at least half the population.
The reproduction cycle is different for men and women, therefore there is more of a need for a difference in law??
More wiggle room to uphold law.
Equal Protection and Due Process Clause
The Loving decision concluded the Virginia law enacted a racial classification that violated the Equal Protection
Clause, and that it infringed the Lovings fundamental freedom to marry in violation of the Due Process Clause.
Right to Marry
Zablocki: Statute that denied right to marry to those who owed child support was unconstitutional because marriage
is a fundamental right. However, Court left caveat that reasonable regulations that so not significantly interfere with
decisions to enter into the marital relationship may legitimately be imposed.
Turner: Prison regulation that required inmates to gain the prison superintendents permission to marry was
unconstitutional. Court held that the regulation was too broad to be sustained by the states legitimate security and
rehabilitation concerns.
Eisenstadt v. Baird (1972)
Doubt arose after Griswold as to how far the Supreme Court might extend Griswolds reasoning with regard to
unmarried persons. This doubt stemmed from the Courts emphasis in Griswold on a right to marital privacy.
The U.S. Supreme Court held that unmarried persons have a constitutional right of access to contraceptives.
Rationale: Equal protection clause of the 14th amendment: Extending the reasoning of Griswold, the Court finds
that the statute violates the Equal Protection Clause by providing dissimilar treatment for those persons
(married/unmarried) who are similarly situated. The Court said:
Whatever the rights of the individual to access to contraceptives may be, the rights must be the same for
the unmarried and the married alike.
The Court rejects both of the proffered state interest
o deterrence of premarital sex: The Court said it would be plainly unreasonable to assume that
Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for
fornication. There was also already a law against fornication, which was a misdemeanor, but the
law here was a felony and pretty much superseded the fornication law.
o the promotion of health: The Court rejected the health measure rationale by pointing out that
federal and state laws regulate the distribution of harmful drugs. In addition, most contraceptives
arent dangerous. If you are so concerned about the health risk, why are you allowing it for
married couples?
10

The Court states that the right to privacy belongs to the individual and not the marital relationship or to
married partners. - If the right to privacy means anything, it is the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision
whether to bear or beget a child.
The right to privacy grew exponentially.
We dont know how far the right extends
Rights of Unmarried Adults
Eisenstadat was widely understood as extending to unmarried adults the same sexual privacy rights that
Griswold recognized for married couples.
However a more narrow reading of the case holds that it concerns only the right of access to contraceptives.
Families or Individuals?
There is argument made that this case is an ideological shift of the family from being one unit to being an
association made up of separate individuals.
o Lawrence v. Texas (2003)
Court overturns its decision in Bowers v. Hardwick upholding sodomy law.
Bowers goes up to the Supreme Court and Court said that throughout history homosexual sodomy was not a
fundamental right.
Lawrence holds unconstitutional a state sodomy statute criminalizing same-sex sexual conduct under the 14 th
Amendment Due Process.
The Supreme Court held that the statute violate the defendants substantive due process rights under the Due
Process Clause of the Fourteenth Amendment. The Court chooses a broad due process rationale, protecting the
individuals liberty to engage in intimate personal relationships, rather than the more narrow equal protection
grounds.
Notes
Here, the Court says that instead the right is the right to be sexually intimate with a consenting adult in the
privacy of your home.
The Court chose to decide the case under the Due Process clause to kill Bowers. If they decided it under
Equal Protection, Texas could have went back and rewritten their sodomy law to be applied equally
The Court limits its holding by stating that the case does not involve persons who might be injured or
coerced or who are situated in relationships where consent might not easily be refused. It does not involve
public conduct or prostitution. It does not involve whether the government must give formal recognition to
any relationship that homosexual persons seek to enter it.
Restrictions on Marriage
o Marriage is not permitted in any state if either party was previously married, and that marriage has not been terminated by
death or divorce.
o Marriage is also not permitted if the parties are related by blood or marriage within certain degrees.
o Bigamous and incestuous marriages are treated as prohibited and void.
o Bigamy and incest may also be punishable under state criminal laws.
o Successive Marriages: Bigamy?
Monogamy is the controlling principle of Anglo-American marriage law: a person may have only one spouse at a
time.
This rule is expressed in civil statutes that treat a subsequent marriage as void and also criminal statutes.
Despite these strong principles, rules against bigamy are not enforced very often.
On the civil side, various doctrines dilute the force of the monogamy principle. One such doctrine is the presumption
of the validity of the later marriage.
Courts will bend over backwards to find one valid marriage and protect people from bigamy. People dont get
prosecuted for this often.
o Chandler v. Central Oil Corporation, Inc.
There are two conflicting presumptions: 1) the presumption that Freds marriage to wife #1 is continuing and 2) the
presumption that his second marriage to wife #2 is valid.
Rule: Where an attempt is made to annul a marriage on the ground of a prior subsisting marriage of the other party,
the presumption of validity of the subsequent marriage is stronger than and overcomes the presumption of the
continuance of the previous marriage, and one who seeks to impeach the subsequent marriage assumes the burden of
proving by evidence so cogent as to compel conviction that the previous marriage has not been dissolved.
Harper
11
The majority view is that a second or subsequent marriage of a person is presumed to be valid; such a
presumption is stronger than and overcomes or rebuts the presumption of the continuance of the previous
marriage, and that the burden of proving the continuance of the previous marriage, and the invalidity of the
second marriage, is upon the party attacking the validity of the second marriage.
Every reasonable possibility of validity must be negative, and the evidence to overcome the presumption of
validity of the subsequent marriage must be clear, strong, and satisfactory and so persuasive as to leave no
room for reasonable doubt. In other words, the burden of proving that a divorce has not been granted to
either party to a former marriage is substantial and is not met by proof of facts from which mere inferences
may be drawn.
Notes
Subsequent marriage presumption: we will presume that the last marriage is valid. The presumption can be
overcome if the party attacking the party by clear and convincing evidence that the parties were married
and never divorced. The party has to go to every county court house he could have gone to divorce her and
prove that a divorce was never made.
This is one of the strongest presumptions in the law.
If we find the first marriage as the valid marriage, then he would have had more children in wedlock. If we
find the earlier marriage valid, then the later marriage is invalid and therefore there are more children out of
wedlock. Messes up inheritance rights
The rationales are: Posted on TWEN
o (1) innocence
o (2) morality
o (3) legitimacy of offspring
Removal of Impediments
Most courts take the position that if a married couple begin living together when there is an impediment to their
marriage, usually a prior existing marriage, and they continue to live together after the impediment is remove, as by
divorce or death, a common law marriage results if wither or both parties had begun living together in a bona fide
ignorance of the impediment.
In states that do not recognize common law marriage, the same result may be reached through statutes or judicial
decisions.
After removal of impediment where there is at least one spouse is ignorant of the impediment, it will convert into a
common law marriage.
Presumptions in Favor of Marriages
Once a marriage has been proved, various presumptions flow from this fact:
Marriage was contracted in good faith;
It was performed by a person having authority; and
Parties have capacity to marry
In other words, the marriage is presumed valid, and the party attacking it has the burden of proving it invalid.
Gomez v. Windows on the World
Man died in 2011 World Trade Center attack. He was married to a woman in Colombia before he went to the U.S.,
where he married the claimant. Escalante had evidence that her divorce to her first husband was valid and shown
where her and Gomez never got a divorce.
Court held that Escalante met her burden of proof to show that her first marriage ended in divorce and her second
marriage was valid. Thus, she is entitled to the benefits and the claimant is not.
Notes
Person who is attacking subsequent marriage must show that:
o (1) they were validly married; and
o (2) they were never divorced.
Notice in a case like this where the man continues contact with the women, there court is more likely to
rule in favor of the prior spouse.
In the United States, there is no nationally registry for marriages and divorces, but in Colombia they do
have such a registry.
Two things to take away
o (1) party expectations that the party still believes they are married, court less likely to apply the
presumptions.
o (2) notice how the presumption is the product of the USs lack of a national registry system.
Dolan v. Celebeze
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Claimant for widow's social security benefits, who married first husband in 1914, who had son by first marriage,
who, after being separated from first husband, remarried in 1942 with knowledge that first husband was alive, who
had no child by second marriage, and who, after second husband died in 1949, again began living with first husband,
sustained her burden, on issue of entitlement to benefits as widow of first husband, of proving continuity of first
marriage.
Notes
Shes the only person trying to claim his benefits, so there was no other wife that would get hurt.
The court will only apply the presumption of the second marriage being valid where, in equity, it is the
right thing to do. The court has flexibility in when it should apply the presumption.
Court will only apply the presumption where, in equity, it feels like they should.
Same-Sex Marriage
o Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)
Holding: The Iowa marriage statute defining marriage as a union between one man and one woman violated the
equal protection clause of the Iowa Constitution.
Court applies intermediate scrutiny.
Whether the proffered governmental objects are important and whether the statutory classification is
substantially related to the achievement of those objectives.
Equal Protection demands more than equal application of the classifications made by the law. The law itself must be
equal. To truly ensure equality before the law, the equal protection guarantee requires that laws treat all those who
are similarly situated with respect to the purposes of the law alike.
Court held that plaintiffs are similarly situated because they are in committed and loving relationships, many raising
families, just like heterosexual couples.
Factors used to determine level of scrutiny:
(1) the history of invidious discrimination against the class burdened by the legislation;
(2) whether the characteristics that distinguish the class indicate a typical class members ability to
contribute to society;
(3) whether the distinguishing characteristic is immutable (unchangeable or it would be repugnant to ask
you to change it) or beyond the class members control and/or the trait is highly visible; and
(4) the political power of the subject class.
o The idea is that they will makes the change through the political process
o Same-Sex Marriage Litigation
o Constitutional Amendments
o Same-Sex Marriage Recognition
The traditional choice of law rule extends
o Defense of Marriage Act (DOMA)
Signed in 1996
Section 3 is unconstitutional.
Section 2 states that no state has to give Full Faith and Credit to same-sex marriages of other states.
o Notes
17 states allow same-sex marriage
3 main ways same sex marriage can become the law of the land:
(1) that Section 2 of DOMA is unconstitutional, allowing same sex marriages to be recognized via Full
Faith and Credit
(2) 14th Amendment Equal Protection
o Equal Protection: Similarly situated parties must be treated equally. If they are not, must determine
what classification that party falls in to.
(3) Due Process: A fundamental Right that has been deprived, the right to marry. The problem with that is
whether it is a right to marry, or the right to marry the person of your choice.
immutable
For example, you can change your religion but this is repugnant to ask you to do so.
This is relevant because depending on whether homosexuality is immutable might bump it from
intermediate to strict scrutiny.
Level of Scrutiny for homo-sexuality
Strict
o Argument for this is that they are a small subsection of the population
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o They are immutable and cant change.
Intermediate
o Argument against this is that, unlike females, there is no need for flexible laws because there is no
change to homosexuals like females regarding reproduction
o An argument for this is that you cant tell who is and who isnt homosexual. The trait is not highly
visible, just like illegitimacy.
o You can argue that this is just gender discrimination because all it is doing is keeping one gender
from doing something the other cant
Rational Basis
o None, really.
Arguments for the State (Governmental Interest)
Hurts Procreation
o Argument For:
May feel more inclined to adopt needy children
o Argument Against:
They arent going to be able to procreate anyway
Morality
o Lawrence stated that morality is not a rational basis.
Stability for heterosexual argument
Argument children do best being raised by two genders
o For: Its best if children have two different genders to raise them so they have those different
influences
o Against:
We allow anyone to adopt anyways.
We would rather have a good loving gay couple raise a child than a heterosexual drug
addict couple.
Some gay couples dont want to have kids so they are being denied their rights too, so
its overly broad.
Religion
o This isnt a legal argument
o Court goes out of its way to state that this will not impact churches and force them to marry gay
couples.
Its Tradition
o Just because something is tradition doesnt mean that it is discriminatory.
o By allowing tradition as a governmental interest, its a circular argument and allows the
discrimination to stand as the basis for its own existence.
Conservation of tax resources
o Against: excluding anyone will conserve resources
Slippery slope
o Allowing gay marriage will open the door to bigamy, bestiality, etc.
Quasi-suspect
A class subject to intermediate scrutiny
Abortion
Introduction
o Reasons abortion supporters feel its important to be able to have an abortion:
Rape
Incest
Health complications for the mother
Mental or physical deficiency in the child
Poor environment to raise a child
Might not be able to support it.
Might not be able to take maternity leave from work and might hinder their advancement in their career.
o It used to be generally accepted that you could not have an abortion when the baby started quickening (meaning when it
started to move).
14
Roe v. Wade
o a right to privacy under the due process clause of the 14th Amendment extended to a woman's decision to have an abortion,
but that right must be balanced against the state's two legitimate interests in regulating abortions:
protecting prenatal life; and
protecting women's health.
o Arguing that these state interests became stronger over the course of a pregnancy, the Court resolved this balancing test by
tying state regulation of abortion to the trimester of pregnancy.
o A criminal abortion statute like Texass that excepts from criminality only a life-saving procedure on behalf of the mother,
without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process
Clause of the 14th Amendment.
(a) for the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must
be left to the medical judgment of the pregnant womans attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the
health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to
maternal health.
(c) for the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it
chooses, regulate, and even forbid, abortion except where it is necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother.
The state may define the term physician and whether they must be licensed in the state and may prohibit any
person who is not a physician from performing the procedure.
Notes
In Planned Parenthood of Southeastern Penn. v. Casey
o the Court reaffirmed the essential holding of Roe while abandoning its rigid trimester
framework.
o The Court emphasized that states have a legitimate interest in protecting the life of the fetus and
held that only where the state regulation imposed an undue burden on the womans decision to
have an abortion would the regulation be unconstitutional.
o Undue burden is where the state regulation has the effect or purpose of placing a substantial
obstacle in the path of the woman seeking an abortion of a nonviable fetus.
o Although the Court rejected the trimester framework in Roe, it retained the distinction between
nonviable and viable fetuses, holding that a woman should be free to terminate her pregnancy
before viability.
o Notes
Right to Privacy
Roe is different than Griswold (right to privacy) and Eisenstadt (individual holds the right) because those
were based on search and seizure. Roe holds that the right deals with the womens right to do with her body
as she so pleases. This, however, is not an absolute right
The state has two legitimate interests:
(1) protecting the mothers help
(2) protecting prenatal life
The 14th Amendment is giving rights to persons, and here they do not consider the unborn yet a person. They come
to this conclusion because they state that the Constitution uses the word person as someone who already exists.
The Court stated that:
Under criminal law, if they were a person, it would be punished like murder
Under property law, a person unborn cannot inherit from the father.
Trimester Framework
First
o Cant restrict it because the fetus isnt viable at this point
o Can regulate it for the health of the mother.
Second
o Can regulate and restrict so long as it is related to the mothers health.
o E.g., if a procedure that came out that has a higher danger risk, they can say that its not allowed.
o Basically like the first trimester but can do more.
Third
o Can restrict except where necessary to protect the mothers health.
15

This is because the fetus because viable this point and the states interest in protecting human life
grows.
The holding is chalked full of policy judgments
Normally, they would just hold it unconstitutional and let Texas figure it out.
They gave the opinion they did because they needed to set out the rights of the mother and the fetus
because, otherwise, it would be trial and error with state legislation.
The right to an abortion is a fundamental right because it is apart of the right to privacy under the due process clause
of the 14th amendment. Must meet strict scrutiny.
Criticism:
States dont have to make it available, they just cant prohibit it from being provided.
These are laws targeted at women, so a better argument might have been Equal Protection.
o This would fall under intermediate scrutiny
o Some have argued that abortion should be legal under the 13th Amendment. The argument is that
you are requiring the women to work (as a walking incubator) against her will without
compensation.
Gonzales v. Carthart
o Upheld Partial Birth Abortion Act, which barred a particular abortion procedure without providing an exception to allow use
of the procedure when necessary to preserve the health of the mother.
Planned Parenthood v. Casey
o Requiring a woman to notify her husband that she is going to get an abortion is likely to prevent a significant number of
women from obtaining an abortion, and it therefore a substantial obstacle.
o The plurality also replaced the heightened scrutiny of abortion regulations under Roe, which was standard for fundamental
rights in the Court's case law, with a lesser "undue burden" standard previously developed by O'Connor in her dissent in
Akron v. Akron Center for Reproductive Health. A legal restriction posing an undue burden was defined as one having "the
purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."
o Notes
A lot of people thought that this case was going to kill Roe.
The Court retained the essential holding of Roe, but got rid of the trimester system.
Instead, they left us with the undue burden test.
So the state doesnt have to provide abortions, they just cant prevent you from obtaining one.
Still retained viability and the two state interests from Roe.
The Court upheld the 24hr. waiting period in between when you sign for the procedure and when you have it done.
Argument that it is an undue burden is that for women who have to travel to get it done is going to be more
expensive and it will attract more attention to you.
Nonetheless, the Court upheld it.
We dont look at the full group of women, we look at the small group that are afraid to tell their husbands, and the
Court finds that spousal notification would be an undue burden.
Minor Abortions
o Minors must obtain parental consent, but there is exceptions for cases involving medical emergencies and a judicial bypass
procedure in cases involving mature minors or situations in which parental notification would not be in the minors best
interest.
o
PROTECTIONS FOR NONMARITAL FATHERS

Introduction
o Traditionally, children born out of wedlock were considered illegitimate
o They were considered the child of no one, and they would have no claim to inheritance rights.
o Back then they didnt have paternity tests, so it was really hard to prove if the child was a mans or not, so it was much easier
to say no.
Best interest of child
o (1) Existence of a home environment
o (2) Stability of present home and family
o (3) Extent to which uncertainty already exists in the childs mind as to paternity
o (4) Efforts and commitments of putative father for emotional support and finances
o (5) Any other relevant factors.
Levy v. Louisiana
16

Children could maintain an action for wrongful death, however the children here were illegitimate.
The Court said it was unconstitutional because there was no connection between the children being illegitimate and their
mother being wrongfully killed
o This was the case that started to say that you cant discriminate on the basis of illegitimacy.
o Intermediate scrutiny is applied to illegitimacy discrimination. Trimble v. Gordon. This isnt just economic discrimination.
There is a history of discrimination with this group and they are immutable. They didnt ask to be illegitimate, they just are.
Stanley v. Illinois (1972)
o Facts: Joan and Peter Stanley are not married, have 3 kids. Joan dies and the state takes the children because Stanley was not
married to Joan. State says that unwed fathers are presumed unfit.
o Holding:
By denying Stanley a hearing and extending the right to a hearing on fitness to other parents, the state has deprived
Stanley the Equal Protection of law under the 14th Amendment, and Due Process Clause (procedural due process).
Unwed fathers cannot be presumed unfit.
Equal Protection argument it was only unwed fathers. These fathers are similarly situated then the other people like
widowed fathers and divorced fathers who got a hearing.
o Notes
The state claims that it has an interest in efficiency because most unwed fathers are unfit, but the Constitution
recognizes higher values than efficiency. Not all unwed fathers are unfit.
It would have been odd at this point of time for a father not to marry the woman, so choosing not to marry
the woman would have be considered a sign of a morality issue or character flaw in the father.
Due process requires a hearing for every parent and the 14th amendment forbids withholding that right from unwed
fathers.
Although Stanley deals with custody, the case has implications for the rights of unwed fathers in adoption cases.
Prior to Stanley, many states allowed adoption with the mothers consent alone. In the wake of Stanley, many
legislatures amended their statutes to confer greater rights on putative fathers.
Notice Requirements
o Many states have passed legislation regarding the notice requirements to unmarried fathers in adoption proceedings.
o Notice may be made by publication when the fathers identity or location is unknown.
o Uniform Parentage Act (UPA) requires service by publication or posting only where the court finds that such service would
be likely to lead to the identification of the father.
Custody and Visitation Claims
o Post Stanley, claims for custody and visitation rights are decided largely on the basis as other parents, when paternity has
been established.
o The primary consideration is the welfare or best interests of the child, and courts may refer to factors set forth in divorce
statutes.
Stepparent Adoption
o Following Stanley, Court decided two cases concerning the rights of nonmarital fathers to consent or withhold consent to a
proposed stepparent adoption that would have the effect of terminating their parental rights.
o Quilloin v. Walcott (1978)
Court allowed the stepparent adoption to go forward, concluding that neither the Due Process Clause not the Equal
Protection Clause protected the fathers parental rights.
Said that the state need only establish that the adoption was in the childs best interests. The Court concluded that the
fathers interests were readily distinguishable from those of a separated or divorced father, and accordingly the
state was warranted in giving him less of a veto power than would be given to a married father.
o Caban v. Mohammed (1979)
Court held that an adoption statute requiring the consent of an unwed mother but not the consent of the unwed father
violated the Equal Protection Clause.
The Court recognized the importance of the state interests in promoting adoption and providing for the well-being of
illegitimate children, but found that the gender-based distinction in the statute did not bear a substantial relation to
this purpose.
Lehr v. Robertson
o Facts
Lehr claims that he has a due process and equal protection right to notice before his daughter is adopted, but he has
never supported her and barely seen her since her birth 2 years ago.
o
o
17

The State maintained a putative father registry. A man who files with the registry demonstrates his intent to claim
paternity of a child born out of wedlock and is therefore entitled to receive notice of any proceeding to adopt that
child. Lehr had not entered his name on the putative father registry. He should have done this.
Tennessee has a putative father registry.
If you are a man and you have sex with a woman and you want to have a say in what she does with the
baby, you send in a postcard of your name and the name of the woman you had sex with.
One reason to do the putative father registry is to prevent a child being taken from their adoptive family
when a father comes forward when he figures out the mother gave the child up for adoption. So the registry
makes the father put his claim to the child up front and he has two years to claim his right to the child.
A big problem is that the registry is just state-wide so if the mother move to another state then you may be
too late to register.
While adoption proceeding was going on, Lehr filed for paternity and visitation and then learned of adoption
proceedings.
Due Process (substantive): Parent-child relationships deserve Constitutional protection in appropriate cases. Sanctity of
marriage and interests of the child are important factors. Here, the notice statute in place is adequate, because it gives putative
fathers the opportunity to register to receive notification of whether the child is going to be put up for adoption.
Biological connection not enough Must have biological connection + substantial relationship
Establishes the biology + doctrine. Being the biological father alone is insufficient. You must establish a
substantial relationship.
Being the biological father gives a man a unique opportunity to come forward and make claim to the child.
When they fail to do so, their right fades away.
When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to
participate in the to participate in the rearing of his child, his interest in personal contact with his child requires
substantial protection under the Due Process Clause. Caban At that point it may be said that he acts as a father
toward his children. But the mere existence of a biological link does not mean it equivalent constitutional protection.
The actions of judges neither create nor sever genetic bonds.
The significance of the biological connection is that it offers the natural father an opportunity that no other man
possesses to develop a relationship with his offspring. If he grasps the opportunity and accepts some measure of
responsibility for the childs future, he may enjoy the blessings of the parent-child relationship and make uniquely
valuable contributions to the childs development. If he fails to do so, the federal Constitution will not automatically
compel a state to listen to his opinion of where the childs best interests lie.
Equal Protection- certain persons are afforded the right to notice: the mother, but only certain putative fathers.
The existence or non-existence of a substantial relationship between parent and child is a relevant criterion in
evaluating both the rights of the parent and the best interest of the child.
Like Walcott, Lehr never had a substantial relationship with the child, so he and the mother do not have equal rights
b/c he never had a relationship with the child.
The Court has held that these types of statutes that make a notice distinction for adoption may not constitutionally be applied
where the father and mother are in fact similarly situated with regard to their relationship in with the child. Caban (Court held
that it violated Equal Protection to grant the mother a veto over the adoption of the children). However, where the father does
not participate in the rearing of the child, nothing in the Equal Protection Clause would preclude the state from withholding
from him the privilege of vetoing the adoption of that child.
If one parent has an established relationship with the child and the other parent has either abandoned or never established a
relationship, the Equal Protection Clause does not prevent a State from according the two parents different legal rights.
Notes
There is an issue with the biology+ doctrine because there is an issue of what is enough parenting?
Just financial?
Hanging out with the child?
What about cases where he doesnt know there is a kid?
This is the unanswered question.
The only thing you can do is register in every state you can because the Supreme Court has failed to answer
what happens if you dont know.
Lehr doe seem to approve of the putative father registry.
The legitimate state interest here is the best interest of the child to allow the adoption to happen sooner and
prevent dead-beat dads from screwing with the mother by refusing to consent and dragging out the
litigation.
o
o
18
Michael H v. Gerald D
o A child born to a married woman living with her husband is presumed to be a child of the marriage.
o Facts: wanted to establish his paternity of a child born to the wife of another man, and the claim that it infringes upon the
constitutional
In Michael H., Carole D. gave birth to a child, Victoria, while she was married to Gerald D., who was listed as the
father on the birth certificate and held Victoria out as his daughter. Shortly after the childs birth, Carole informed
Michael H., a neighbor with whom she had conducted an adulterous affair, that he was the father. For a several year
period during Victorias first three years, Carole and the child lived with Michael and blood tests indicated a 98.07%
probability that Michael was Victorias father. Michael also held the child out as his own. After Carole parted with
Michael, he filed a filiation action to establish his paternity and sought visitation with Victoria. Gerald, who had
reconciled with Carole, intervened in the action, claiming, on the basis of the statutory conclusive presumption, that
he was Victorias father.
o Opinion
At the United States Supreme Court, Michael argued that his substantive due process rights were violated because
he had established a parental relationship that constituted a constitutionally protected liberty interest.
The United States Supreme Court upheld the California statute that provided that the issue of a wife
cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the
marriage. The presumption could be rebutted by blood tests only if the husband made a motion within two
years from the childs birth or, if the biological father had filed an affidavit acknowledging paternity, by the
wife.
The Court rejected his argument, concluding instead that the marital family is the unit to be protected from
claims of third parties, such as Michael, and that the California legislature was free to select that entity as
the one to protect.
In a persuasive dissent, Justice Brennan, joined by Justices Marshall and Blackmun, argued that the plurality opinion
conflicted with the Courts earlier opinions that protected established parent-child relationships between unmarried
fathers and their children.
The right not only has to be fundamental, but it also be an interest traditionally protected by our society. The interest
here is the interest of an adulterer to come forward and have an interest in the child. Often in Constitutional law is all
about how you define the right.
o Notes
Because the Supreme Court merely upheld the then-existing conclusive statutory presumption of paternity, but did
not mandate it, the majority of states have adopted a rebuttable presumption of paternity based on marriage.
The effect of this is to place the burden of persuasion on a person asserting that the child is illegitimate. It is
generally a strong presumption that may be rebutted only be clear and convincing or even more persuasive
evidence.
However, those states still face questions regarding the circumstances under which the presumption may be
rebutted.
Some states have required a putative father seeking to rebut the presumption to demonstrate that the best
interests of the child would be served.
Some states have invalidated their statutes denying a putative father standing to challenge the paternity of
the mothers husband.
The statute in the case was later amended to allow a presumed father who is not the childs mothers husband the
ability to move for a blood test to establish paternity within 2 years of the childs birth. Some other states like
Massachusetts allow this if he can prove by clear and convincing evidence that he is the father and also that he has a
substantial parent-child relationship with the child.
Parentage by Estoppel
o A husband who is not the biological father of a child born to his wife during marriage may be estopped from later denying
paternity if he has acted as a father with knowledge that the child may not be his.
o Similarly, some courts hold that a wife is estopped from challenging her husbands paternity in divorce proceedings or
subsequent to a divorce.
o Under an equitable parent approach, a husband who reasonably believes that he is the father of a child born to his wife during
their marriage may be treated as the childs father regardless of biological paternity.
Courts have generally not been willing to apply these principles where the mothers nonmarital partner was led to
believe that he was the father of her child.
Tort Claims
o State courts are divided on the question whether a husband who learns that he is not the biological father of a child born
during his marriage may sue for tort damages.
19
Scholars have come up with a 3 prong test Biology+ Rule:

o (1) Biological father Biology
o (2) he has to be the emotional father (he has come forward and acted as the father) Emotion
o (3) We have to examine his relationship with the mother to make sure his claim would not disrupt an existing family unit.
Relationship to the Mother
Side note: Child support is strict liability. If you are raped or statutorily raped, you still have to pay child support.
ESTABLISHING PATERNITY
Acknowledging Paternity
o Prompted by federal law, all states have simplified procedures for paternity acknowledgement, with a particular focus on
encouraging in-hospital voluntary paternity establishment at the time a child is born.
o Cesar C. v. Alicia L (Nebraska 2011)
In absence of a successful challenge of an acknowledge, an acknowledgement of paternity signed by the parents at
the time of a childs birth has the effect of establishing the man as the legal father of the child.
Its a notarized form that the father and mother signAcknowledgment of Paternitystating that the man is the
biological father.
Facts: C filed for full custody of the child after A was arrested for methamphetamine. A asserted that he might not be
the father and requested genetic testing. The genetic tests concluded that C was not the father and A filed for full
custody. Court did not give legal effect to the acknowledgement and assigned custody to A after applying the
parental preference doctrine
The proper legal effect of a signed, unchallenged acknowledgement of paternity is a finding that the
individual who signed as the father is in fact the legal father.
May be challenged only on the basis of fraud, duress, or material mistake of fact with the burden of proof
on the challenger.
Court stated that the best interest of the child is ordinarily served by certain parentage determinations and
continuity in the childs life.
Notes
Once you acknowledge paternity, you its pretty much like an adjudication establishing paternity.
Here we have a child who was raised by this man and got to know this man.
The kids interest comes into play
o Paternity Acknowledgement
Under UPA 2002 301, the mother of a child and a man claiming to be the childs biological father may sign an
acknowledgement of paternity.
If the child has a presumed father, his full name must also be given in the acknowledgement, and the
acknowledgement must be accompanied by a denial of paternity signed by the presumed father.
An acknowledgement or denial of paternity may be rescinded within 60 days after its effective date or until the date
of the first hearing adjudicating an issue concerning the child, and after this time may be challenged only on the
basis of fraud, duress, or material mistake of fact and only within two years after the acknowledgement or denial is
filed with the appropriate state agency.
o Birth Certificate
If a child is born to unmarried parents, federal law provides that the fathers name may be included on a birth
certificate only if there has been a voluntary paternity acknowledgement or an adjudication of paternity.
o Paternity of Cheryl (Mass 2001)
A fathers challenge to a paternity judgment may be untimely even though he may establish conclusively that he is
not a childs biological parent where the father does not request relief within a reasonable time.
Issue:
Whether a father may move to set aside a judgment of paternity when, more than 5 years after he
voluntarily acknowledged paternity, genetic testing established that he was not the childs biological father.
Holding:
The father did not request relief within a reasonable time. The father had an opportunity to, but did not
seek, genetic testing. He claimed that his decision to acknowledge paternity voluntarily at that time was
conditioned solely on his understanding that he was the childs biological father. A man may acknowledge
paternity for a variety of reasons, and it cannot be assumed that biology is the sole reason in every case.
The father also did not take any action when he was told he was not the father.
Where a father challenges a paternity judgment, what is in the best interest of the child will often weigh
more heavily than the genetic link between parent and child.
20
A man who has comported himself as a childs father may be obliged to continue to support the child when
he, for the first time, renounces his apparent paternity in an attempt to avoid court-imposed support
obligations.
The court stated there might have been a different holding if:
o He did not have an opportunity to undergo genetic testing before he acknowledged paternity
o The man challenged paternity on obtaining information that he might not be the childs biological
father.
Notes
o He had a chance to submit to genetic testing earlier, and he didnt. He formed a substantial
relationship with the child
o It is in the best interest of the child to not disturb the relationship.
o The state is more likely to hold that the child is the mans when there is nobody else claiming the
right. The state doesnt want the kid to be a ward of the state.
Res Judicata
Challenges to paternity judgment are generally limited by the rule of res judicata
In divorce cases, language included in the courts orders that identifies a child as a child of marriage also
constitutes an adjudication of parentage, which can ordinarily be challenged only under rules permitting reopening
of a judgment.
A mother may also be bared by res judicata from seeking to disestablish the paternity of her childs legal father.
Law in several states have removed obstacles to the disestablishment of paternity when a legal father offers genetic
evidence of nonpaternity, even if many years have passed since paternity was adjudicated.
o Limitations Periods
UPA limits challenges to the paternity of a child with an acknowledged or adjudicated father to a period of two years
after the effective date of the acknowledgement or adjudication.
Proceedings to adjudicates the parentage of a child with a presumed father must be commenced within two years of
a childs birth, unless the court also finds that the presumed father and mother of the child neither cohabited nor
engaged in sexual intercourse with each other during the probable time of conception and the presumed father
never openly treated the child as his own.
For a child with no presumed, acknowledged, or adjudicated father, a proceeding to adjudicate parentage may be
commenced at any time, even after the child becomes an adult.
o Child Support After Paternity Disestablishment
Generally, an order disestablishing paternity terminates any ongoing obligation to pay child support, but state laws
are divided on whether such an order discharges the obligations to pay support arrearages.
Cases and statutes have not permitted the disestablished parent to recoup payment already made.
Adjudicating Parentage
o Laws such as UPA define who has standing to initiate a parentage action, who must participate in the proceeding, and within
what time periods the action must be brought.
o N.AH. v. S.L.S (Colo. 2000)
A question of paternity is not automatically resolved by biological testing. Courts must consider the best interest of
the child in face of conflicting presumptions of fatherhood.
Trial judge should take into account all the facts and circumstances of the case
Some states have an exhaustive list.
If we have two competing presumptions we use the best interest of the child.
Presumption of legitimacy (born into marriage) v. presumption of biological father.
If there are two competing presumptions, the court must use policy and logic Best interest of the child.
Biological father doesnt automatically win because taking the child from the man he thinks is his father could be
damaging to the child.
P. 1099 204 Presumption of Paternity and 602 (different from Michael H. case because here any man and not just
the presumed father can adjudicate the paternity)
606 and 607 (only has two years to challenge the paternity of a child with a presumed father)
Biological father wins if he gets genetic testing to show it, but must be brought within two years, but the
court can deny your request for genetic testing.
202 No Discrimination on Marital Status. A child born to parents who are not married to each other
has the same rights under the law as a child born to parents who are married to each other.
o Best Interest of the Child Principle
o
21

As noted in NAH, courts in other states may require that a determination of the childs best interest be made before
the court orders or considers genetic testing to establish the biological paternity of a child born to a married woman.
Even where a presumption of paternity has been rebutted, a court may refuse to declare the existence of a fatherchild relationship between the biological father and the child.
The same result may be reached based on estoppel principles or on strong versions of the presumption of legitimacy.
Evidentiary Treatment of Genetic Test Results
Federal laws governing paternity determinations require states to implement genetic testing in some circumstances.
The law also requires a presumptive effect to be given at certain threshold levels (e.g., 95%, 97%, 99%).
Parentage Adjudication
A court must have personal jurisdiction over the parties to adjudicate parentage.
Any person who has sexual intercourse within a state submits to the jurisdiction of its courts with respect to a child
who may have been conceived by that act.
Paternity must be established by a preponderance of the evidence.
Federal guidelines require a bench trial and for state to allow the establishment of the paternity of a child at any time
until the child reaches 18 and some states extend the period when an action may be brought by or on behalf of a
child whose paternity has not been determined until three years after the child reaches majority.
Elisa B. v. Superior Court (Cal. 2005)
A woman who agreed to raise children with her lesbian partner, supported her partners artificial insemination using
an anonymous donor, and received the resulting children into her home and held them out as her own, is the
childrens parent under UPA and has an obligation to support them.
The provisions applicable to determining a father and child relationship shall be used to determine a mother and
child relationship insofar as practicable.
These legal principles concerning presumed father apply equally to a woman seeking presumed mother status.
Husband of the childs biological mother, is not impotent or sterile, and was cohabiting with her;
Signs a voluntary declaration of paternity stating he is the biological father of the child; and
If he receives the child into his home and openly holds out the child as his natural child.
The presumption that a man/woman who receives a child into his/her home and openly holds the child out as his
natural child is not necessarily rebutted when he/she admits he is not the childs biological parent.
What matters is whether they hold out to the world that they are their child.
o Give them the same name,
o file them on tax returns as dependents,
o tell people that they are your son/daughter.
o Things like that.
Rebutting the presumption that the woman was not their mother would leave the children with only one parent and
deny them the of the support of having a second parent.
Notes
Johnson case says that a child can only have one mother, but in that case there was a father and two women
claiming to be the mothers. The court said that the wife was the mother because the wife intended to bring
about the child.
The court said that Johnson was about not being able to have 3 parents, not that you cant have a two
women in a lesbian couple.
Parentage Presumptions and Same-Sex Couples
In jurisdictions that recognize same-sex marriage or an equivalent status like civil unions or domestic partnerships,
presumptions of parentage based on marriage to a childs biological parent will apply equally to children born to
legally-valid same-sex unions.
Child Support Obligations
States have considered whether cohabitants may have support obligations for their former partners children after the
cohabitation ends.
Recognition of Parentage Orders
Without a judicial order, parental rights that result form a legally valid same-sex marriage or partnership may not be
recognized in a state that does not recognize these unions.
For these reasons, it is important for same-sex couples to obtain an adoption decree or parentage order confirming
the parental rights of both parents.
o
o
ADOPTION
Introduction
22

Adoption creates new family relationships when the legal rights and responsibilities of one or both of the childs natural
parents are terminated and the law substitutes new rights and responsibilities of adoptive parents.
o State statutes govern both steps, the termination of one set of rights and the creation of the other, which may occur in the
course of one legal proceeding or two separate proceedings
o Termination and obligations of natural parents
May be accomplished voluntarily or involuntarily
Voluntary termination
Parents consent
Occurs when a natural parents initiates a proceeding for the relinquishment of his or her child, or when the
parent completes a valid consent to adoption.
Involuntary termination
Without obtaining the parents consent.
Usually accomplished in a statutory proceeding initiated by a state agency.
Establishment of adoptive parents rights and responsibilities.
o After rights of natural parents have been terminated, adoption laws define how adoptive parents may establish their legal
parental ties with the child.
o Placement may be decided by:
Public or private adoption agency
By the natural parents themselves
Sometimes with the assistance of an intermediary
o In all states, a court must approve the placement and determined whether adoption is in the childs best interest.
Assisted Reproduction
o State statues also regulate different methods of assisted reproduction including artificial insemination, in vitro fertilization
and embryo transfer, and surrogacy.
o There may be a conflict with parentage claims
Notes
o Severing the ties of the natural parents is particularly complicated
o Most states allow mothers to change their minds
No state allows a mother to give consent before the baby is born.
We want the mom to be able to change her mind because having the baby might give her such an attachment to her
she wants to keep it.
o We dont not allow women to give irrevocable consent before the child is born
In some states, the mother can give irrevocable consent after the child is born.
In other states, the mother cant give consent until after a waiting period, usually 10 days. After the waiting period, it
is irrevocable.
Other states, she can give consent right after birth, but she has a certain amount of time to revoke.
o Petition v. Steve BD (Idaho 1986)
In the absence of fraud, duress, or undue influence, consents to adoption become final and irrevocable upon
execution of the consent to adoption by the natural parents, and delivery and surrender of the child to the adoptive
parents.
After consent is given but before adoption is finalized, must come down to a judicial inquiry of the best interest of
the child.
Where the child has been delivered to and has been for some period of time in the custody of the prospective
adoptive parents, emotional ties and bonds are established between the child and the adoptive parents, the severance
of which will be as traumatic, if not more so, than the severance of the ties between the child and the natural parents.
Thus, there is no presumption in favor of the natural parents when it comes to the best interest of the child at this
point.
Notes
The adoptive parents have started to love the child and are for the child and if biological parents can change
their minds so easily, then people wont want to adopt and we want to encourage adoption.
Ways to protect your client who is trying to adopt:
Get the natural mother independent legal advice
Make sure the mother has counseling from a social worker to talk to her about the alternatives
Have the consent for the adoption given in court. Dont just have them give it on a form.
Take away:
o
23
Hypo:
o
You cannot consent before birth

Know generally how long before:
o she can consent (right after birth or a so many days); and
o how long she has to revoke (Irrevocable unless in best interest of the child, 10 days, 10 working
days, etc.).
o Usually, the longer one is, the shorter the other is.
We are balancing the natural parents rights, adoptive parents rights, and the childs rights.
Fraud and Duress

Duress from circumstances is not a good enough reason for revocation
Mother cant use duress from her economic circumstances as a good enough reason if she subsequently
falls into some money
When we talk about duress, it is things that are external
Open Adoption
Where you agree to let the natural parent get updates about the child, send pictures, etc.
Sometimes you agree for the natural parent to also get visitations.
The demand for children is so high that adoptive parents also offer open adoption in hopes to increase their chances
of getting picked over parents who only want a closed adoption. Demand for babies is high.
Why you cant accept money for the right to adopt the child
Policy wise, babies are expensive and allowing a natural mother to run the price up on adopting a child would hurt
the childs best interest.
Once you introduce babies as commerce, you would have people stealing babies, women being sold into babymaking slavery.
You would have problems with people paying money for children, and then litigating over when the child had a
mental disorder or something to that effect.
Heidbreder v. Carton
Natural father was trying to gain his parental right.
Biology+ Rule (come forward and act like a dad)
He claims:
Fraud
He substantially complied with the statutory deadline of 30 days (he was day off)
Promissory estoppel
Statute violate his due process & equal protection rights
o Procedural due process because he should have gotten notice
o Equal protection because it required mothers notice and not his
Court held:
He did not have a right to the child.
Even though she lied and he tried really hard to comply it wasnt enough. No matter what, you need to tell your
father clients to register on the paternity registry.
Some states have an impossibility exception to putative father registry, which includes lack of knowledge of
pregnancy or where she lies about the pregnancy.
If we have an exception that is too robust, however, then nobody will want to adopt. Nobody wants to adopt
a child that might get taken away from them a couple of years down the road.
If you are a man and you have sex with someone, that puts you on notice that there might be a baby and
that puts you on notice right there. Kind of lends you to believe the court is saying dont trust women.
Would it make a difference if she told him that she miscarried instead?
Maybe because it gives him a better argument for failing to register on the father paternity registry
It might meet the courts fraud exception. In this case, the court held that she lied what she might do in the future, so
he still should have registered. If she lied about it, then he would not have done anything.
3-4
Must promptly assert yourself as the father.
There is a difference in coming forward and acting like a dad pre-birth v. post-birth. Post-birth coming forward
doesnt carry as much weight as post-birth coming forward.
3-5
No problem because it is up to him to protect his rights.
24
If you are a male and you have sex with someone, that is your notice that she could have a baby
3-6
About 30 states have a putative father registry. Other states do legal notice in publication.
Some states do require mothers to disclose the names of the potential fathers or eve disclose her name.
The case in this hypo held that the statute was unconstitutional as an invasion of privacy because it required her
name, where it happned, what date, etc., etc.
Here, maybe just give the height, weight, hair color, and approximate date. This is the reason why most states have
went to the putative father registry.
Nonmarital fathers constitutional rights
o When do unmarried biological fathers have the right to receive notice and give consent before their parental rights are
terminated in an adoption?
o When the father has:
filed in the state paternity registry as the biological father; and

developed a relationship with the child
o The test is called biology+ rule.
Statutory Protections for Putative Fathers
o All states have provisions for voluntary acknowledgement of paternity of a nonmarital child.
o Many states have putative father registries and others allow for filing an affidavit or acknowledgement with a court.
Court approaches to fathers trying to veto adoption of newborn baby
o (1) a number of states take the approach of Heidbreder and require nonmarital fathers to take specific steps in order to
participate in adoption proceedings, often within a very short time after the childs birth (e.g., 5 days).
o (2) In another group of states, courts hold that a nonmarital father has a constitutional right under Lehr to prevent termination
of his parental rights for a third party adoption if he can show that he has demonstrated a substantial commitment to
becoming a parent. Court inquire into the fathers conduct before and after the child is born, his willingness to take custody
and his contribution towards the pregnancy. There is a focus on prenatal conduct, so fathers who do not act until after the
baby is born may have a tough time vetoing the adoption.
Newborn Safe Haven Laws
o In all states
o Responding to the stories of many abandoned children, the states allow relinquishment of very young children anonymously
or with an assurance of confidentiality and with no risk of criminal prosecution unless there is evidence of abuse or neglect.
o Different time limits for different states:
Some states- no more than 72 hours old
Some states- no more than a month
Most states- various times of less than a month
very few states up to a year of age
In re J.J.J., A Minor (Alaska 1986)
o Facts
7 year old father was adopted by his stepfather over the objection of the boys biological father.
o Issue
(1) Whether the master erred in finding that for at least a 12-month period, the biological father failed significantly
without justifiable cause to provide support required by judicial decree
The superior court correctly affirmed the masters finding with respect to support
(2) Whether the superior court erred in reversing the masters determination that is was not in the best interests of
the child for the adoption to be granted
correctly reversed her best interest for the adoption to be granted
(3) whether the superior court erred in ruling that the biological father could, upon a proper showing be granted
enforceable post-adoption visitation rights.
erred in allowing for post-adoption visitation rights
o Holding
The court must consider the best interest of the child in determining whether to grant an adoption to a stepparent.
Factors include natural parents:
Failure to communicate with the child
Significant failure to pay child support
Other acts of abandonment
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In order for a noncustodial parent to block a stepparent adoption, he must have maintained meaningful contact with
the child, and must have provided regular payments of child support, unless prevented from doing so by
circumstances beyond the noncustodial parents control.
Circumstances resulting from the noncustodial parents own conduct cannot excuse such a parents
significant failure to provide support or maintain meaningful communication.
Failure to support or maintain contact with a child should not be excused by the emotional antagonism or
awkwardness that may exist between former spouses.
Test
Meaningful contact; and
Regular payments of child support; unless
The parent is precluded from doing so by circumstances beyond the noncustodial parents control
Notes
Sporadic partial payments do not preclude a finding of significant failure to provide child support.
Payments should be substantial or regular
It doesnt make any sense to count the payments that the government has to garnish from the parents
wages.
Courts shall consider a parents entire history of support or non-support to determine whether that parent
has waived his or her right to block a childs adoption by a stepparent.
A parents duty to provide child support is not excused by the conduct of others unless that conduct actually
prevents performance of the child-support obligation.
Childs best interest
(1) the physical, emotional, religious, and social needs of the child;
(2) the capability and desire of each parent to meet these needs;
(3) the childs preference if the child is of sufficient age and capacity to form a preference;
(4) the love and affection existing between the child and each parent.
(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of
maintaining continuity;
(6) the desire and ability of each parent to allow an open and loving frequent relationship between the child
and the other parent.
"If a parent failed to support for some period but then subsequently started to support and did so for a sufficient time
up to the time of adoption, he has not waived support. However, the if the man before them has not resumed
payments or only just resumed making payments prior to the adoption proceeding, the court will find differently." I
think that's why they refer to "the here and now," meaning at the time the court sees the father, what has he done
leading up to the adoption. And the use of the "might" clause is the court's way of saying that they won't take into
account what you promise to do in the future, only what you've done thus far.
o Class Notes
Ways to terminate a fathers rights:
Abandonment
o Neglect
o If you fail to pay child support for a year, they can terminate your rights.
Consent
He argued that the garnished wages was enough, that it was excusable because the wife was keeping him from
seeing the child, etc. They said that her not letting him see the child isnt good enough because he should still pay
and then should start an action to get his visitation.
He gave a one lump sum. The court said this wasnt good enough because it is not so much about of getting the
money. Instead, it is a proxy to see if you really care about the child. Even though it is phrased in a way of support,
its more about seeing if you care about the child.
Failure to Support
o The one-year nonsupport requirement is common to many stepparent adoption statutes, but states interpret them differently:
(a) Some statutes explicitly define the 12 month period as immediately preceding the filing of the adoption.
(b) one-year rule should be strictly construed in favor of the biological parent, holding that a father had only failed to
support his child for 11 months when he made payments on August 15, 1995 and August 16, 1996.
Best Interest
o The best interest of the child is not relevant to a determination of whether a noncustodial natural parents consent is
unnecessary.
26

o The best interest of the child is evaluated only after the consent is determined to be unnecessary.
Incomplete Adoption
o Stepparent is awarded custody, but parental rights are not terminated and the natural parent retains visitation rights.
Termination without Adoption?
o Should courts permit a custodial parent to petition for termination of the noncustodial parents rights where no stepparent
adoption is being sought, even if both parents agree?
o Courts usually hold that termination of parental rights should not be used for the convenience of the parents or to avoid child
support payments.
Second Parent Adoptions
o Whether state adoption statutes permit a stepparent adoption by an adult who is cohabiting with but not legally married to the
childs custodial parent.
o Often for same-sex couples.
o Second-parent adoptions are approved in a number of jurisdictions that now permit same-sex couples to marry or enter civil
unions or registered partnerships.
o Courts in another group of states do not allow second parent adoptions by unmarried partners.
o In states that second parent adoption is not available, the parent may seek to give their partner some rights to over the child
by appointing them as a guardian or conservator, and designating them as an agent for purposes of exercising parental
decisions.
ASSISTED REPRODUCTION
Introduction
o Beyond adoption, assisted reproduction allows a couple to become parents to a child whom they also share a genetic
relationship.
o Often, these births are only possible through the use of donor eggs or sperm or using a surrogate mother.
o In contrast to adoption, which is governed by detailed adoption laws, many aspects of assisted or alternative reproduction are
not regulated in the United States.
Artificial Insemination
o Also known as intrauterine insertion (IUI).
o Technique utilizes sperm from the husband (AIH) or sperm from a known or unknown donor (AID)
o All states have laws regulating the practice to some extent, but many questions remain
E.g.,
state law differs on questions such as whether private insemination agreements are enforceable
Whether a child conceived posthumously may establish a legal parent-child relationship with his deceased
genetic father for purposes of inheritance or federal Social Security benefits.
the parental rights of a sperm donor when an unmarried woman conceives a child by artificial insemination.
Most statues provide that when a married woman is inseminated with donor sperm with her husbands consent, the
husband is the legal father of the child and the donor has no parental rights or obligations.
o E.E v. O.M.G.R (N.J. Super. Ct. 2011)
Issue: Whether two parties can enter into a private contract regarding a self-administered artificial insemination
procedure whereby one party may contract with another to terminate their parental rights where they have not
complied with the exception laid out in the statute.
Holding:
First, under common law parties cannot contract to terminate their parental rights. Termination of parental
rights is controlled by statute.
Second, the Legislature did not intend for this type of procedure to lead to the termination of parental rights
under the artificial insemination statute and therefore the parental rights of the donor in this manner will not
be terminated.
In this case, there was no physician involved because she did it herself, so they failed to meet the
requirements under the statute to preclude the donor as the presumed father.
A child has a right to the security of two parents at the time of birth. Parental rights can be legally terminated only
when:
A parent has been declared unfit;
An adoption as taken place; or
If child services has removed the child from the parent.
The parental rights of one parent may not be terminated by consent except when it is accompanied by the adoption
of the child by another party.
27
o
o
Notes
The NJ statute in the case provided the following:

o Unless the donor of semen and the woman have entered into a written contract to the contrary, the
donor of semen provided to a licensed physician for use in artificial insemination of a woman
other than the donors wife is treated in law as if he were not the father of a child thereby
conceived and shall have no rights or duties stemming from the conception of a child.
California: Where impregnation takes place by artificial insemination, and the parties
have failed to take advantage of the statutory basis for preclusion of paternity (i.e., the
use of a licensed physician in the process), the donor of semen can be determined to be
the father of the child in a paternity action.
Kansas: The physician does not need to be directly involved in the procurement of the
semen as long as he is involved in the insemination. The woman can get it herself as long
as she uses a physician.
Court notes that the case law favors the application of the statute to limit the rights of the donor when the
donor seeks to exercise his parental rights by virtue of his biological relationship. The existence of parental
rights and the exercise of those rights are different.
However, in the end the court says it is in the best interest of the child for to have sole custody because
doesnt want anything to do with the child and isnt seeking child support payments.
Class Notes
You cant just go to the court and relinquish your rights.
o Have to have an adoption
o Determination the parent is unfit
o Removal by child services.
A sperm donor has no rights to a child unless there is a written agreement to the contrary.
As to the physician requirement, most states require this to try and limit fraud.
o We have statutes to relinquish sperm donors rights to prevent disrupting families.
o We also want to encourage sperm donations so the fathers wont be obligated to be the fathers.
o We also want to encourage people to go to a sperm bank for health reasons
They gave her custody and said at some point his rights could be terminated.
o Probably for abandonment or something eventually
If you are representing the sperm donor who wants to preserve his parental rights, you should probably
include the following in the agreement:
o Exactly what rights you want to protect
o How you plan to help provide for the child
Medical Supervision
Insemination Agreements
Courts have enforced visitation provisions included in insemination agreements
In McIntyre v. Crouch (Or. 1989), the court held that the state statute precluded the donor from asserting his parental
rights, even though he was known to the mother and no physician was involved. However, court did state that it
would violate his due process right to deprive him of his parental rights if he had donated the semen in reliance on
an agreement with the mother that he would have parental rights and obligations.
Kansas requires that insemination agreements addressing the parental rights of a known donor to be in writing.
Known and Unknown Donors
While there is little risk that an unknown donor will seek to assert parental rights, there are several reasons why a
mother may want a known donor
A mother may want to be able to tell the child a little about the fathers background
Medical records and family medical history to ensure that the baby will not be genetically susceptible to certain
health problems later on in life
Posthumous Conception
UPA 2002 707
If an individual dies before placement of his or her eggs, sperm or embryos for assisted reproduction, that
person is not parent of the resulting child unless the individual consented in a record that he or she would
be parent of the child if assisted reproduction were to occur after death.
A posthumously conceived child may qualify for Social Security benefits as the child of a deceased individual under
42 U.S.C. 416(h)(2)(A) (2012) but only if the child could inherit from his or her deceased biological father under
the intestate inheritance laws o the state where the father was domiciled at the time of death.
28
Assisted Reproduction Technology

o UPA 702 An egg or sperm donor is not a parent of a child conceived by means of assisted reproduction.
o Embryo donation is possible as another means of assisted reproduction and may be treated under the same principles as egg
and sperm donation. UPA 102(4)(c)
However, Louisiana says that an in vitro fertilized human ovum is a judicial person, and provides that if IVF patients
renounce their parental rights their embryos will be available for adoptive implantation.
o State laws also vary on the treatment accorded to unused frozen embryos, particularly if the intending parents disagree on
how to dispose of them. Some states require clinics to provide information to their patients and ask them to enter a written
agreement as to the disposition of unused eggs, sperm, and embryos in the event of death, divorce, or other unforeseen
circumstances.
o Davis v. Davis (Tenn. 1992)
Addressed the status of seven frozen embryos a married couple had created together, which had not been implanted
at the time of their divorce. Wife wanted to donate them to childless couples and husband objected stating that this
would force him to parenthood against his wishes.
The Tennessee Supreme Court held that the pre-embryos where neither persons nor property, and ruled that they
occupy an interim category that entitles them to special respect because of their potential for human life.
The court held that the interest of the ex-husband in not becoming a parent outweighed the interest of the ex-wife
who wished to donate the embryos to other persons and not use them to attempt to achieve parenthood for herself.
Surrogacy
o Surrogate parenting agreements fall into 2 categories:
(1) traditional surrogacy
woman agrees to be inseminated on behalf of a commissioning parent
the woman who gives birth to the child is also its genetic mother.
There is the expectation that she will surrender her parental rights to the father and his wife.
(2) gestational surrogacy
IVF techniques are utilized to create an embryo that is implanted into the uterus of a woman who agrees to
carry the child for the intending parent or parents.
The woman who gives birth to the child has no genetic tie to the child.
Woman is hired just to incubate the child. The egg was either taken from the mother or another donor.
This is the more common system right now.
o RR v. MH (Mass. 1998) [Enforceability of surrogacy agreement]
Facts: Father has his sperm inseminated into surrogate mother. They had a surrogacy agreement where the father
would have custody of the child. During the 6 months she was pregnant, the mother changed her mind and decided
she wanted to keep the child. Both married but not to each other.
If no compensation is paid beyond pregnancy-related expenses and if the mother is not bound by her consent to the
fathers custody of the child until she consents after a suitable period has passed following the childs birth,
surrogacy contracts are enforceable.
The mother and father may not, however, make a binding best-interest-of-the-child determination by
private agreement. Any custody agreement is subject to a judicial determination of custody based on
the best interest of the child
Other conditions may be important in determining the enforceability of a surrogacy agreement, including:
(a) the mothers husbands informed consent to the agreement in advance;
(b) the mother be an adult and have had at least one successful pregnancy;
(c) the mother, her husband, and the intended parents have been evaluated for the soundness of their
judgment and for their capacity to carry out the agreement;
(d) the fathers wife incapability of bearing child without endangering her health;
the intended parents be suitable persons to assume custody of the child; and
(f) all parties have the advice of counsel.
Holding
The surrogacy agreement was not enforceable. The court held that you cannot compensate a woman for a
surrogacy more than the medical expenses. Court looked at adoption statutes. Here, the father was
obviously paying her for the child, especially considering that the final payment would not be made until
the child was delivered to him and that all the money he gave the mother must be given back if she
challenged the fathers right to custody.
Notes
29
o
o
o
o
o
You cannot have a surrogacy agreement where you contract to relinquish your rights before the baby is
born. We already have statutes where you cannot consent to adoption until after the baby is born.
Court said that paying the woman to carry the child was too close to selling children.
o Court talks about the commodification of the babies, and it would make them too close to a good
and subject to contract law.
Gestational Surrogacy
Intro
You can pay a gestational surrogate.
Johnson v. Calvert (Cal. 1993)
When two women present proof of maternity, the one who affirmatively intended to bring about the birth
of a child that she intended to raise as her own will be the childs natural mother.
The court rejected the surrogates argument that the agreement violated the states adoption laws because
the gestational surrogacy differs in crucial respects from adoption.
Surrogacy Statutes
Altruism and Commodification
Determining Maternity
With IVF techniques, there are now two different sources of biological motherhood.
A woman who conceives a child using IVF and donated eggs will give brith to a child with whom she has
no genetic connection.
Courts have been divided on the question whether it is possible for a child to have two biological mothers.
Johnson concluded that the intended mother should be recognized as the childs natural mother under UPA
KM v. EG (Cal. 2005)
Court concluded that both lesbian partners were the legal parents of a child after one had given her egg to
the other for in vitro fertilization, despite the fact that the donor had signed a consent form that relinquished
any claim to legal parentage.
In a number of states, laws permit intending parents to obtain a birth certificate for the child that lists their names
and not the surrogates.
Unmarried Couples and Assisted Reproduction
Courts have experienced difficulty with this issue
Steven S v. Deborah (Cal. 2005)
A sperm donor had no parental rights despite his intimate relationship with the mother when conception
occurred as a result of artificial insemination rather than sexual intercourse.
In re Parentage of JMK (Wash. 2005)
The statute terminating the parental rights and obligations of a sperm donor was not applicable to a man
who donated sperm to his lover for IVF.
In re CKG, 173 S.W.3d 714 (Tenn. 2005)
a woman who conceived children by IVF using donor eggs and her partners sperm was entitled to parental
rights after the couple ended their relationship.
Surrogacy Torts
Several courts have recognized the possibility of tort liability of the intermediaries arranging surrogacy contracts to
the participants and the child born.
Notes
If a married woman goes to get artificially inseminated, the law will presume that her husband is the father of the
child, unless he states that he does not consent to being the father. Courts will bend over backwards to show that the
father consented to being the father.
We want two parents whenever we can find it.
Typically he has to affirmatively state that he is not the child
Usually before birth.
The scenario where an unmarried mother goes to a sperm bank, the only exception to the rule where the law will
require the biological father to support the child is where the biological father donated sperm
FAMILY RIGHTS AND RESPONSIBILITIES

ONeal v. Wilkes
o Majority held that the aunt did not have the contractual authority to place ONeil up for adoption, so the adoption contract
was invalid.
30

Dissent: Stated that the point of requiring consent from the parent or guardian is to ensure their interest in the child. Here, the
problem does not arise until after the adopting parent is dead. The only person being harmed is the child who thought that
they were adopted. Dissent would adopt a theory that focuses not on the fiction of whether there has been a contract to adopt
but on the relationship between the adopting parents and the child in particular whether the adopting parents have led the
child to believe that he or she is a legally adopted member of their family.
o Notes
She is claiming something called several things: quasi-adoption, virtual adoption, equitable adoption, etc.
Comes up where someone makes the claim that even though they were not adopted, they were treated like a child to
the extent that in equity she should be treated like a child.
The Aunt who gave up the child did not have the authority to enter into that contract.
The two approaches in virtual adoption
o (1) Contract based approach
Court looks for an agreement to adopt;
After finding the agreement valid, they order specific performance
o (2) Equitable estoppel based approach
Court still looks for the agreement, but then the Court states that they are going to deny anyone from challenging it
based on the conduct of the parties.
o Notes
The Court requires an agreement because it makes fraud on an estate far too easy.
There is one state that just looks at the parties (child and parent) and they are satisfied by clear and convincing
evidence there was a parent-child relationship, they will treat them as such.
Notes
o You can adopt adults
o Great tool for gay couples to establish each other rights for intestacy, medical decisions, etc.
o This does a belt and suspenders to a will, durable power of attorney, etc.
o Adopting the other adult gives them priority in intestate taking.
o Once youre an adult, your biological parents do not have to consent to your adoption. However, you will no longer be able to
be an intestate taker to them.
Husbands, Wives, and Partners
o Introduction
English Common Law
Based on the system of coverture, a husband was entitled to control virtually all of his wifes property.
A married woman had no legal capacity to make contracts or to sue and be sued in her own name.
Her husband was held responsible for her crimes or torts.
Coverture was gradually eliminated by the Married Womens Property Acts that were enacted in all states.
When a woman married a man, she sort of legally became a part of him.
The court would never have to deal with marital problems, because you couldnt assault yourself, or
contract with yourself, etc.
After the Married Womens Property Acts
Did not cover other aspects of coverture however, which continued
Building on the idea that a wifes legal existence had merged into her husbands, the common law held that
a married couple could not contract with each other, could not enter into a criminal conspiracy with each
other, and could not commit torts against each other.
A husband had the right of consortium, encompassing her service, society, companionship, and sexual
relations.
Over time, courts began to characterize the tradition of noninterference in family life in terms of respect
for marital privacy or preserving marital harmony rather than on the basis of coverture or spousal unity.
Spousal Contracts
States have begun to allow a wider range of premarital and separation agreements.
Courts remain reluctant to enforce agreements between spouses with respect to their ongoing marital
obligations.
Spousal Support Obligations
Contemporary statutes and case law assign the support duty equally to husbands and wives, to be shared
proportion to their financial means.
Courts will not take jurisdiction over support claims while the couple lives together, however.
o
31

Nebraska Court reversed a lower court ruling for a husband to make repairs and improvements to
the home, give his wife an allowance, buy a car with a working heater, etc.
o Court held that living standards of a family are a matter of concern to the household, and not for
the courts to determine.
Spousal Necessaries
Creditors continue to rely on the family expense statutes and the necessaries doctrine in order to hold one
spouse responsible for the others debt.
Most states have expanded the obligation to cover both spouses.
Spousal Tort Immunities.
A large majority of states have abolished or limited the traditional immunity.
Spousal Evidentiary Privileges
Under federal law, there is a marital privilege to give the witness-spouse the choice whether or not to testify
adversely.
Evidence law also recognizes a privilege for confidential commutations between husband and wife, which
may be asserted by the spouse by whom a communication was made. There are exceptions to this privilege,
like where the parent is charge with child abuse.
Notes
Courts are still sorting out couples between tort law and contract law between married couples, and courts
are reluctant to get into all of it.
There are proof problems, too much litigation could dissolute the marriage
Plus, everything would come out in a divorce. All bets would be off and any and all torts or contracts would
be litigated.
o Schlueter v. Schlueter, (Tex. 1998)
This is a community property state where the property is split equally, so he starts to sell all of his stuff to his dad,
then he divorces his wife. The trial court gave her a disproportionate share for his fraud on the community and gave
her tort damages for his wrongful act.
Because a wronged spouse has an adequate remedy for fraud on the community through the just and right property
division upon divorce, the court held that there is no independent tort cause of action between spouses for damages
to the community estate.
A separate and independent tort action for actual fraud and accompanying exemplary damages against ones spouse
do into exist in the context of a deprivation of community assets, if the wronged spouse can prove the heightened
culpability of actual fraud, the trial court may consider it in the property division.
The husbands fraud may be taken into account in the division of property in the couples divorce.
Notes
The court said that this is not personal injury case, so she cant sue under tort.
The remedy she is getting is coming from the community.
The only harm was to her harm to her community property, courts will order a separate judgment if there
isnt enough to compensate her, but here there was enough to compensate her from the community
property.
Policy reasons:
o With the passage of no-fault divorce laws (in all states, allowing divorce for irreconcilable differences), many states also
enacted law that prohibit
Property Division
o The husbands fraud may be taken into account in the division of property in the couples divorce.
o With the passage of no fault divorce laws, many states also enacted laws that prohibit courts from considering marital
misconduct in division of marital property. Despite this rule, courts in these states have sometimes approved awards taking
financial misconduct into account.
Marital Torts
o Claims for assault and battery are commonly recognized, and may permit financial recovery for a spouse who has been the
victim of domestic violence.
o Souses have also sued after being infected by a partner with a sexually transmitted disease.
o In case raising claims of outrageous conduct, or negligent or intentional infliction of emotional distress, courts have struggled
to determine what level outrageousness is necessary to state a claim for relief.
Some courts have recognized a claim of IIED (one where a wife who has been raped prior to the marriage was
traumatized by her husbands attempts to force her to engage in sexual bondage.)
o
32
Other courts have not been willing to recognize emotional distress claims, in part due to a concern that some
emotional distress is part of the normal process of marital life and marital breakdown.
KNOW
o Coverture and why we started to move away from it.
Community and Common-Law Property p. 450
Tort Claim and the Marital Relationship
o Notes
In re Guardian of Atkins (Ind. Ct. App. 2007)
o This case is built in the casebook to demonstrate the harms that can come to couples that are not married.
o Brett and Patrick were a gay couple. Patrick had a stroke and is now incapacitated. The parents hate Brett and the fact that
Patrick was gay and they are now trying to prevent Brett from seeing him.
o Brett sues for guardianship, visitation, and division of community property.
o The reason Patrick cant say that he wants Brett to take care of him is that Patrick has been deemed incompetent. Thats the
whole point of having to litigate over guardianship.
o The family was just as well equipped as Brett, so the trial court did not abuse their discretion in giving the guardianship to the
family.
o However, the court says it was an abuse of discretion for the trial court to find that it was not in Patricks best interest for
Brett to have visitation.
o Lesson: You never know what is going to happen tomorrow, so you should always move to protect yourself.
Parents and Children
o Parents have a liberty interest, protected by the Due Process Clause of the U.S. Constitution, in determining the education
and upbringing of their children.
Meyer (1923): Struck down a state law prohibiting the teaching of foreign languages in public schools.
Pierce (1925): struck down law requiring parents to send their kids to public schools (v. private schools or home
schooling).
Wisconsin v. Yoder (1972): the First Amendment protects parents decisions on religious grounds to keep their
children out of school after the eighth grade.
o There are important limits on these rights
The state, acting as parens patriae on behalf of the young citizens has a compelling interest in protecting children,
reflected in laws requiring parental support and prohibiting child neglect and abuse.
In case of serious harm, the state may remove children from their parents custody and ultimately terminate parental
rights.
Contemporary cases have determined that children have some rights of constitutional dimension that may limit their
parents control over decisions such as whether they may use contraception or have an abortion.
o Troxel v. Granville (U.S. 2000)
Facts: Statute allowed for any party at any time to file for visitation if the court found it was in the best interest of
the child. Grandparents want visitation rights.
The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make
childrearing decisions simply because a state judge believes a better decision could be made.
There is a presumption that fit parents act in the best interest of their children.
Notes:
We presume that a fit parent will act in the best interest of the child.
She also didnt even deny the grandparents visitation, but just wanted a smaller amount of time.
Court struck the statute down because it was too broad, and there was not finding that she was unfit.
All 50 states have statutes that provide for grandparent visitation in some form. (e.g., Tenn. Code Ann.
36-6-306, 36-6-307).
Parental Presumptions
Parents, Children, and Torts
Emancipation of Minors
o Diamond v. Diamond
An emancipated minor is defined as any person sixteen years of age or older who has entered into a valid marriage,
whether or not the marriage was terminated by dissolution, who is on active duty with any of the armed forces of
the USA, or who has received a declaration of emancipation.
The court held that it was okay for the daughter to have a partial emancipation.
The plain language of the statute said for one or more of the following purposes
33
Policy reason: the child needs support, and is going to get it either from her or the government.
Parental Support Obligations
Father was primarily responsible for the support of his minor children, but the duty now extends equally to father
and mothers
Parental obligations are enforceable thorough a variety of civil and criminal remedies discussed.
o Age of Majority
Since the adoption of the 26th Amendment in 1971most statea have rediced the age of minority to 18
Still subject to some restrictions, such as laws that prohibit purchase of alcohol until age 21.
In a few states, although the age of majority is 18, the parents duty to support their children continues until age 21
(NY).
Depending on state law, children are sometimes permitted to seek support after reaching the age of majority, either
for educational expenses or when a child is disabled.
o Emancipation
Many states have statutes that authorize a minor to obtain a judicial declaration of emancipation, usually with the
consent of the minors parents or guardians.
Such decrees allows the minor to live apart from his parents and to manage his or her own property and
financial affairs.
Typically, however, the parents obligation of support ends once a child is emancipated.
Depending on the context, a child will be determined emancipated once the child:
(1) marries;
(2) enlists in the military; or
(3) establishes his or her own residence and begins to earn his or her own living.
E.g.,
o A daughter who left home to live with her boyfriend had emancipated herself and the parents cold
not be required to support her.
o When a child let home to take a summer job, earned money in that job, and then returned home,
the child was not emancipated.
The child must initiate an action to put himself outside the parents control and that the child must be self-supporting
in fact.
o Children in Need of Supervision
All or nearly all states have statutes authorizing juvenile proceedings against children under the age of 18 who run
away from home or disobey their parents reasonable instructions or are habitually truant from school.
In the proceeding, the court might order the child to return home and obey his parents rules.
If the child were placed away from his parents, however, the parents would continue to be liable for the support of
the child.
From the cases, in the book, a parent should not be able to terminate their duty of support where the child refuses
persistently to obey them. Basically, the court say that they should not be allowed to be relieved of their duties of
being a parent and the childs disobedience isnt grounds for emancipating the child, putting them into society, and
giving them the freedom to be adults.
o Support Obligations for Adult Family Members
p. 537
o Vicarious liability
Some states you have to show that the parent is at fault
Some states it is strict liability
o Parents can impose reasonable rules and restrictions on the child. Problem 4-4. The father does not have to support the
daughter she is fully emancipated.
DOMESTIC VIOLENCE
Why do we have laws regarding domestic violence?
o Marriage presents a different dilemma
o It can be taken of fairly rapidly v. a tort claim or assault claim. It doesnt take long for an ex parte order for protection (15
days).
o All your going to have with tort law is damages.
History
o Historically, women were viewed as the husbands child and the husband could discipline her, and only if it got very extreme
could the wife do anything about it.
o
34

Coverture prevented the women from doing anything about any type of abuse.
Slowly this began to change, but there are areas we are still uncomfortable about allowing some claims
Evidentiary issues
Courts dont want to contribute to the break down of the marriage
Women are sometimes afraid to testify against their husbands
o Afraid of repercussion and retaliation
o They love the person very much.
o Usually, there is a slow progression of the violence that slowly builds until it reaches a point that is extreme.
o Battered-Wife Syndrome
The batterer will do some abuse and apologize
Then it happens again and says hes sorry again
Eventually, you have a person who feels helpless and like they have no recourse
They have been conditioned through this abuse that this person is all they have in the world and they cant live
without them.
It is very difficult to prove domestic abuse and it is very hard to define.
Domestic or family violence means the occurrence of one or more of the following acts by a family or household member, but does
not include acts of self-defense:
o (a) attempting to cause or causing physical harm to another family or household member;
o (b) Placing a family or household member in fear of physical harm; or
o (c) Causing a family or household member to engage involuntarily in sexual activity by force, threat of force, or duress.
o Notes
Statute covers family or household member
Often defined as family members or who stays in your house
Some states frame it in a matter of sexual relationships, but they dont want to get into that and dont want
to chill people from coming forward to seek help.
In Tennessee, dating relationships is enough. Just have to prove an ongoing dating relationship.
o Relief
If you apply and fill out the paper work, you can get ex parte order for protection
An order of protection says that:
They have to stay away
They cant contact you
o Hypo where the man cannot go home because his wife got an ex parte order of protection for 10 days until the hearing.
This likely offends due process, but it is outweighed because there is such an interest in protecting the woman that
we allow it.
Do women lie sometimes? Sure, but most of the time they are not and we dont want to chance something happen to
them.
Violence Against Women Act
o VAWA includes a variety of civil and criminal provisions intended to prevent problems against gender based violence,
including:
Funding for prevention
Training
Research programs
Provisions establishing new civil and criminal claims under federal law.
o VAWA established two new federal domestic crimes
(1) made it a crime to travel across state lines with the intention to commit domestic violence and then to commit
such crime
(2) made it a crime to cross state lines with the intention to violate a protective order and then to do so.
o VAWA also enacted the Protective Order Gun Bad, criminalizing the possession of a firearm by anyone subject to a domestic
violence restraining order.
o VAWA also mandated that states give full faith and credit to protective orders issued in other states.
o Also sought to improve circumstances with immigrants by enacting amendments to the Immigration and Nationality Act to
permit victims of domestic violence to leave their partners and sponsor their own applications for permanent residence and to
permit cancellation of removal for a battered spouse or child in cases of extreme hardship.
o The federal civil rights remedy of VAWA was found unconstitutional as outside the powers a Congress to regulate commerce
in US v. Morrison.
o
o
35
P. 468
o
Violence Against Women Act also allowed a remedy for the women who have been abused under Commerce Clause, but it
was struck down.
Typically, self-defense doesnt work because you:
o Have to be defending yourself in the moment; and
o You have to meet force with force.
o So they tried to implement battered-spouse syndrome. The argument is that they are constantly in fear at all times and they
never know when the next attack is going to be. Courts will admit and accept this but they will rarely accept this as an excuse
for murder, but use it to negate criminal intend but it is rarely a complete defense.
CHILD MALTREATMENT
Introduction
o While parents have a constitutionally-protected right to control their childrens education and upbringing, states have broad
authority to enact legislation designed to protect children.
o Court must balance appropriate protection for fundamental parental rights with the compelling state interest in protecting
children from harm when states act to remove children from their parents care or terminate their parental rights.
o The child welfare system in the United State has been shaped by a cooperative federalism, in which the national government
provides funding and defines the parameters for state laws under Title IV-B and IV-E of the Social Security Act
Responding to Child Abuse and Neglect
o In common law, the father was entitled to the custody of the children and had the right to exercise complete control over
them. His right to discipline them was subject to few limitations, and harsh punishments were not unusual. Criminal law
afforded some remedies to deter or punish cruelty to children, but they were not used often and were frequently ineffective
because it was hard to prove.
o Child Abuse Prevention and Treatment Act of 1974 (CAPTA)
Established a National Center on Child Abuse and Neglect in the U.S. Department of Health and Human Services
Provided grants for development of child abuse prevention and treatment programs.
o Child Welfare Act of 1980 (AACWA)
Established new child protection requirements
Set up a reimbursement program for state expenses incurred in the administration of adoption and foster care
programs.
o Adoption ad Safe Families Act (ASFA)
Amended the IV-B and IV-E programs to reduce the time children spend in foster care and move them more quickly
into adoptive or other permanent homes
o In the years following WWII, many people in the medical profession become concerned about child abuse and began to
classify and identify its symptoms.
o Child Abuse Reporting Laws
One important innovation came in the form of child abuse reporting laws
Requires various individuals including physicians, teachers, and child care providers to report when they suspect
that a child has been abused or neglected.
o Court Proceeding
Once discovered, child maltreatment is usually addressed in a civil proceeding, typically divided into two stages:
Adjudicatory stage
Dispositional Stage
Adjudicatory Stage (D&N/CINA (China) Proceeding)
Concerned with whether the child was abused or neglected within the meaning of the applicable statute.
This may be framed as an inquiry into whether the child is dependent or neglected, sometimes referred to
as a D&N proceeding, or whether the child is a child in need of assistance, also referred to as a CINA (or
China) proceedings.
Dispositional Stage
If the court determines that the child has been abused or neglected, the dispositional stage considers what
remedy best fits the circumstances.
The court might release the child to the custody of his or her parents with or without a protective order or
some for of supervision, or place the child in the custody of other persons, a foster home, child care agency,
or an institution.
In a particularly serious case, the court might terminate parental rights completely.
36
Beyond these civil remedies, child maltreatment may also be referred for prosecution under state criminal
laws.
Notes
You have a right to reasonably discipline your child, but you cant abuse it. That is where the line becomes blurry
In re Ethan H. (N.H. 1992)
o Facts: Child was throwing food at the dinner table. His mother asked him to stop and he ignored her. She took a belt and
spanked him on the butt six times with it.
o The court reversed the lower courts order finding that the con was an abused child under the Child Protection Act.
o A parent of a minor of a child or one standing in loco parentis is justified in using a reasonable amount of force upon a child
for the purposes of safeguarding or promoting the childs welfare.
o Reasonable corporal punishment is allowed.
o A proper finding of child abuse must include a determination of whether the alleged abusive act was committed under
circumstances indicating harm or threatened harm to the childs life, health, or welfare. Such harm may be demonstrated by,
for example the severity of the intentionally inflicted injuries; recurring or threat of recurring injury; or injury when a profile
of the childs caretaker indicates a history of, or a propensity for, abuse.
o Notes
Have to take into account culture, appropriateness of the punishment, the severity of the infraction, the amount of
force used, the injury caused, age of the child, intent of the parent, the childs ability to comprehend what is going
on, etc.
Its pretty much a totality of the circumstances.
Laws, to pass constitutional muster, must be able to put the person on notice. If it does not, it can be
unconstitutionally vague.
E.g., you can not partake in harsh behavior
You want it kind of broad to apply to different situations, but if its too broad, then it is unconstitutionally
vague.
We have a constitutional right to upbring out children, but it has to be balanced against the states interest in
protecting the childParens Patrie
Always thing of the state as a third parent who can watch over what is going on and step in and take the
child if they feel it is necessary
Child Abuse Reporting Laws
o All states have child abuse reporting acts, and are required to have such acts as a condition on receiving federal funds.
o Under federal law, state statutes must require child abuse reporting by classes of persons likely to come in contact with child
abuse, such as doctors, nurses, other health care workers, school teachers, or child care providers, and similar persons.
o The statute also authorizes reports by anyone who knows of or has reasonable cause to suspect child abuse.
o Reports are made to local child protective or law enforcement agencies (like DCS).
o The statute provides that any person reporting child abuse in good faith is immune from criminal or civil liability that might
otherwise result from such a report, and good faith is usually presumed.
Child Abuse Registries
o Most states have these registries.
o E.g., New Hampshire
May require that each instance of reported child abuse be entered in a central registry, whether or not probable cause
is found.
When probable cause is not found, kept in registry for 3 years
When probable cause is found, kept in registry for 7 years.
Parental Rights
o Invoking the principle that they have a constitutionally protected interest in the care, custody, and management of their
children, parents sometimes file suits under 42 U.S.C. 1983.
o Courts evaluating these cases hold that the state ahs a compelling interest in protecting the childrens welfare, and focus on
whether the authorities had a reasonable suspicion that the child has been abused or was in danger of being abused.
o Defendants in this type of case are typically accorded a qualified immunity from suit, which is available so long as they do
not act in violation of rights that are clearly established in the law.
Specifically, it protects government officials from lawsuits alleging that they violated plaintiffs rights, only allowing
suits where officials violated a clearly established statutory or constitutional right. When determining whether or
not a right was clearly established, courts consider whether a hypothetical reasonable official would have known
that the defendants conduct violated the plaintiffs rights. Courts conducting this analysis apply the law that was in
force at the time of the alleged violation, not the law in effect when the court considers the case.
o
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Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go
through the costs of a trial at all. Accordingly, courts must resolve qualified immunity issues as early in a case as
possible, preferably before discovery.
Qualified immunity only applies to suits against government officials as individuals, not suits against the
government for damages caused by the officials actions.
Defining Abuse and Neglect
o Legislatures have generally made child abuse statutes more specific to avoid giving trial courts too much discretion,
permitting them to impose their own standards of family conduct on people from social and economic group whose practices
may be different, but who love their children and give them adequate care like broad or general statutes would allow.
o NEW YORK FAMILY Court ACT
1012. Definitions. When used in this article and unless the specific context indicates otherwise:
(e) "Abused child" means a child less than eighteen years of age whose parent or other person legally responsible
for his care
(i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which
causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted
impairment of physical or emotional health or protracted loss or impairment of the function of any
bodily organ, or
(ii) creates or allows to be created a substantial risk of physical injury to such child by other than
accidental means which would be likely to cause death or serious or protracted disfigurement, or
protracted impairment of physical or emotional health or protracted loss or impairment of the function of
any bodily organ, or
(iii) commits, or allows to be committed an offense against such child defined in article one hundred thirty
of the penal law; allows, permits or encourages such child to engage in any act described in sections
230.25, 230.30 and 230.32 of the penal law; commits any of the acts described in sections 255.25,
255.26 and 255.27 of the penal law; or allows such child to engage in acts or conduct described in article
two hundred sixty-three of the penal law provided, however, that (a) the corroboration requirements
contained in the penal law and (b) the age requirement for the application of article two hundred sixtythree of such law shall not apply to proceedings under this article.
(f) "Neglected child" means a child less than eighteen years of age
(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming
impaired as a result of the failure of his parent or other person legally responsible for his care to exercise
a minimum degree of care
o (A) in supplying the child with adequate food, clothing, shelter or education in accordance with
the provisions of part one of article sixty-five of the education law, or medical, dental,
optometrical or surgical care, though financially able to do so or offered financial or other
reasonable means to do so; or
o (B) in providing the child with proper supervision or guardianship, by unreasonably inflicting
or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of
excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic
beverages to the extent that he loses self-control of his actions; or by any other acts of a
similarly serious nature requiring the aid of the court; provided, however, that where the
respondent is voluntarily and regularly participating in a rehabilitative program, evidence that
the respondent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that
he loses self-control of his actions shall not establish that the child is a neglected child in the
absence of evidence establishing that the child's physical, mental or emotional condition has
been impaired or is in imminent danger of becoming impaired as set forth in paragraph (i) of
this subdivision; or
(ii) who has been abandoned, in accordance with the definition and other criteria set forth in subdivision
five of section three hundred eighty-four-b of the social services law, by his parents or other person
legally responsible for his care.
(g) "Person legally responsible" includes the child's custodian, guardian, any other person responsible for the
child's care at the relevant time. Custodian may include any person continually or at regular intervals found
in the same household as the child when the conduct of such person causes or contributes to the abuse or
neglect of the child.
(h) "Impairment of emotional health" and "impairment of mental or emotional condition" includes a state of
substantially diminished psychological or intellectual functioning in relation to, but not limited to, such
factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting
38

out or misbehavior, including incorrigibility, ungovernability or habitual truancy; provided, however, that
such impairment must be clearly attributable to the unwillingness or inability of the respondent to exercise a
minimum degree of care toward the child.
[NOTE: The references in (e)(iii) of the statute relate to sex offenses; to various forms of promoting prostitution, to
incest with an ancestor or descendent or with brother, sister, uncle, aunt, nephew or niece, and to sex performances
by a child.]
DeShaney v. Winnebago County Department of Social Services (U.S. 1989)
o Facts: Father beat 4-year-old son into a coma, causing permanent brain damage. Son sued under 14th Amendment due process
clause, saying the social services should have protected him. Social services knew that there were signs of abuse and did not
take action.
o The Due Process Clause of the 14th Amendment generally confers no affirmative right to governmental aid, even where such
aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the
individual.
o Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its
citizens against the invasion by private actors.
o Notes
This is different from the states duty to prisoners because here there is inaction instead of action and there is no
counterweighting constitutional interest involve (i.e., here the parent has a constitutional right to parent his child)
Injuries in Foster Care
o A number of cases have recognized liability when a state official acts with deliberate indifference to a substantial risk of
serious harm to a child placed in foster care.
o State employees may have qualified immunity from suit under 1983 if a reasonable official would not have understood that
his conduct violated a constitutional right.
State Tort Claims
o Some courts have concluded that a state or state agency might be liable for negligence in either placing a child in a foster
home where he is beaten or in failing to investigate and detect child abuse.
o Illinois allowed a negligence action to proceed against foster parents following the death of a foster child.
o Another court held that state agencies have a vicarious liability for abuse inflicted by foster parents.
Failure to Report Abuse
o Most courts have refused to recognize a private right of action against a mandatory reporter who fails to report instances of
child abuse when no report is made and a child is injured as a result.
o Barber v. State (Fla. Ct. App) affirmed a conviction for failure to report sexual abuse in circumstances in which another
person had already reported the particular incident.
Collaborative Practice
o In response to problems at the intersection of child protection and domestic violence, one important initiative has advocated
greater collaboration between courts, the child welfare system, and the network of domestic violence service providers. A
series of federally-funded demonstration projects have works to implement and develop these recommendations.
Estelle v. McGuire (U.S. 1991)
o 14th amed. Due Process rights were not violated by allowing prior injuries of child into the case.
o In conducting habeas corpus review, a federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States. It is not the province of a federal habeas court to reexamine state court determinations
on state law questions.
o The injuries of the child were necessary to come in because it went to the intent of the crime, which is a necessary element
for the state to prove. MIMIC exception.
o What is battered child syndrome and how has that in the law helped us?
It is an indication of consistent abuse over a period of time, so you could around 404(b) Rule of Evidence for prior
bad acts.
Allowing the injuries to come in to show battered child syndrome lets the jury hear them for that purpose.
Its a technique that allows us to prove that the child died out of means other then accidental.
You can use battered child syndrome for anytime prosecuting for an injury to the child.
You need this to prove the abuse because a child may not be able or want to testify and it usually happens in the
home so there are no witnesses.
Prosecuting Child Abuse
o Criminal prosecutions for child abuse present unusual problems for prosecutors, because the victims of these crimes may be
too young to testify and there are often no other witnesses to the crimes that were committed.
Terminating Parental Rights
39
In Interest of KF (Iowa 1989)

o Mental disability, standing alone, is not a sufficient reason for the termination of the parent-child relationship. Nevertheless, it
is a proper factor to consider and, when it contributes to a persons inability to parent, may be determinative on the issue of
whether termination is required in the childs best interest.
o Children need the stability and security of knowing that they will not be moved from place to place so they can allow
themselves to emotionally invest and receive those around them. Allowing them to go in and out of foster care due to their
mother being committed repeatedly is not in the best interest of the child.
o Need to show that there is no reasonable possibility that the parent has a chance of rehabilitation.
o Notes
State statutes establish grounds for involuntary termination of parental rights, which ends the parent-child
relationship and frees the child for adoption. Statutory grounds typically include:
Severe and chronic abuse and neglect of the child or other children in the same household, abandonment,
failure to support or maintain contact with the child, or incapacity based on long-term mental illness or
deficiency or alcohol or drug use.
A child welfare case typically proceeds to termination of parental rights when the states reasonable efforts
to preserve or reunify the family have failed.
State must prove the grounds for termination of parental rights by clear and convincing evidence.
Placement Options
o To what extent should the availability of a permanent adoptive placement for a child affect the courts decision whether to
terminate parental rights?
o In In Interest of SJ (Iowa 1990), the court refused to terminate parental rights despite the fact that the parents could not care
for their nine-year-old son where his prospects for the adoption were poor and his needs were being well met by an
experienced foster parent.
Childs Wishes
o Most custody statutes include the preference of the child as a factor to consider in deciding custody.
o In Georgia, a child of fourteen has the right to choose his custodian unless the parent chosen is unfit.
o Many statutes provide that the consent of a child to an adoption is required once the child has reached a specified age,
generally twelve or fourteen years old.
o Courts will usually give weight to the childs wishes, but wont let it be 100% determinative because children dont always
know whats best for them. The older the get, the more weight is given to the childs wishes.
Sibling Relationships
o In re DC (NJ 2010): considered the application of the states sibling visitation statute, concluding that the law created a
presumption in favor of sibling visitation prior to adoption, and permitted orders for continued visitation after an adoption.
o Many states take a different approach, however: (Pa. 1996) Holding that child has no standing to seek court-ordered visitation
with siblings.
Parent with Disabilities
o In cases of severe psychiatric illness, when there appears to be no possibility of improvement, courts have approved orders
terminating parental rights immediately after the childs birth.
o Similarly, in the case of chronic drug or alcohol abuse, when numerous attempts at treatment have failed, child welfare
authorities may remove a child from the parents custody immediately after its birth.
o ADA does not create a defense to an action for termination of parental rights.
NOTE
o Look at how much deference and leadway we give the parents to get their child back
o Must be shown by clear and convincing evidence that the parent is not fit.
FAMILY DISSOLUTION
Getting Divorced
o Early divorce laws in the US trace to English ecclesiastical law, which permitted couples to obtain a legal separation called a
divorce a mensa et thoro based on adultery or other serious marital fault.
o A divorce a vincula matrimonii was a marriage annulment and terminated the marriage and also freed the parties to marry
again.
o US colonies didnt have ecclesiastical court but brought the doctrine with them
Calvinists generally permitted divorce based on proof of serious marital fault such as adultery, cruelty or desertion,
while those with a stronger Anglican tradition prohibited divorce.
o Later in the history, the different divorce laws of the states (allowing divorce for different reasons) caused unhappy couples to
forum shop in order to obtain a divorce, resulting in complex conflicts of laws issues.
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Before non-fault divorces, courts were often lax on the requirements where both parties mutually wanted to end the marriage
and sometimes husbands would confess to adultery that did not occur in order to obtain a divorce.
o The idea that divorce was a legal remedy to be granted only to an innocent partner against one who was guilty of marital
misconduct was continuously criticized continuously up until the reforms were taken.
Divorce Grounds
o People used to forum shop to find states that had the most lenient laws for divorce.
o Early no fault divorce laws authorized divorce based on incompatibility or a period of living separate and apart.
o In 1970, the first pure no fault divorce law went into effect in California.
o Uniform Marriage and Divorce Act (UMDA)
Although not widely ratified, the UMDA served as a model for many state legislatures as they rewrote their laws
Now the Model Marriage and Divorce Act (MMDA)
Uniform Marriage and Divorce Act (UMDA)
o 302. [Dissolution of Marriage; Legal Separation]
(a) The [_______] court shall enter a decree of dissolution of marriage if:
(2) the court finds that the marriage is irretrievably broken, if the finding is supported by evidence that
o (i) the parties have lived separate and apart for a period of more than 180 days next preceding the
commencement of the proceeding, or
o (ii) there is serious marital discord adversely affecting the attitude of one or both of the parties
toward the marriage;
(3) the court finds that the conciliation provisions of Section 305 either do not apply or have been met;
(b) If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall
grant the decree in that form unless the other party objects.
o 305. [Irretrievable Breakdown]
(a) If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is
irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after hearing, shall
make a finding whether the marriage is irretrievably broken.
(b) If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall
consider all relevant factors, including the circumstances that gave rise to filing the petition and the prospect of
reconciliation, and shall:
(1) make a finding whether the marriage is irretrievably broken; or
(2) continue the matter for further hearing not fewer than 30 nor more than 60 days later, or as soon
thereafter as the matter may be reached on the court's calendar, and may suggest to the parties that they
seek counseling. The court, at the request of either party shall, or on its own motion may, order a
conciliation conference. At the adjourned hearing the court shall make a finding whether the marriage is
irretrievably broken.
(c) A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation.
Fault v. No Fault
o No-fault usually has a waiting period and fault based does not.
o Fault-base is a good bargaining chip in negotiation to make the other party give you what you want. If you wont give me
what I want, Ill proceed under a fault base on ruin your image by having a public record or your affair, abuse, etc.
o You can bring in all the other partys dirt in a fault base and usually cant in a no-fault.
o Fault v. no fault has no impact on what you can bring up when adjudicating children issues and all that. Just the status of
being married.
Tennessee grounds for divorce
o The no-fault grounds for divorce are:
irreconcilable differences, and
Irreconcilable differences are differences between the partners in a marriage which make it impossible for
their marriage to continue.
Many things such as lots of time away from home, financial strain, arguments about how to raise children,
and religious conflicts can put strain on a marriage and are considered irreconcilable differences.
Sometimes, people simply find that their partners change over time, and that their feelings about their
partners change as a result. In other cases, personality conflicts emerge when people transition from
unmarried to married life and find that they are not as compatible as they thought.
To divorce on the grounds of irreconcilable differences, the partners usually just need to petition. They do
not need to show proof or to provide evidence.
o
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living in separate residences, and not cohabiting as spouses, for at least two years (this ground applies only if the
couple has no children).
o The fault grounds for divorce are:
either spouse, at the time of the marriage, was and still is naturally impotent and incapable of procreation
either party has knowingly entered into a second marriage, in violation of a previous marriage that has not ended
either spouse has committed adultery
either spouse has willfully or maliciously deserted or left the other, without a reasonable cause, for one year
either spouse has been convicted of a crime which, by the laws of the state, renders the party infamous
either spouse has committed a felony and been sentenced to confinement in the penitentiary
either spouse has attempted to take the life of the other, by poison or any other means showing malice
either spouse has refused to remove with that person's spouse to this state, without a reasonable cause, and has been
willfully absent from the spouse residing in Tennessee for two years
the wife was pregnant at the time of the marriage, by another person, without the knowledge of the husband
habitual drunkenness or abuse of narcotic drugs by either spouse, when the spouse has contracted such habit after
marriage
either spouse is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation
unsafe and improper, which may also be referred to in pleadings as inappropriate marital conduct
either spouse has offered such indignities to the other spouse's person as to render the other spouse's condition
intolerable, and thereby forced the other spouse to withdraw, or
either spouse has abandoned the other, or turned the other out of doors, and refused or neglected to provide for the
other while having the ability to do so.
Desrochers v. Desrochers (NH 1975)
o A divorce decree shall be granted irrespective of fault on the ground of irreconcilable differences except where there is a
likelihood for rehabilitation of the marriage relationship or when there is a reasonable possibility of reconciliation.
o While the desire of one spouse to continue the marriage is evidence of a reasonable possibility of reconciliation, it is not a bar
to divorce. If one spouse resolutely refuses to continue and it is clear from the passage of time or other circumstances that
there is no reasonable possibility of a change of heart, there is an irremediable breakdown of the marriage.
o Statute allows the trial court to receive evidence of specific acts of misconduct where it is determined by the court necessary
to establish the existence of irreconcilable differences. This authority is an exception to the general rule of the statute
excluding such evidence.
o Up to the trial court to decide. Fact specific.
o If one person wants out, thats it.
Hagerty v. Hagerty (Minn. 1979)
o The underlying concern in no-fault divorce hearings is whether a meaningful marriage exists or can be rehabilitated.
o Irretrievable breakdown can be shown where both parties acknowledge that a breakdown exists at the time of the proceeding
and one sees no reconciliation possibility. It can also been shown by evidence of only one partys belief that a breakdown
exists, particularly where the parties have been living apart.
o Determination of irretrievable breakdown is determined from the subject attitude of the parties.
Traditional Divorce Grounds and Defenses
o Grounds
Adultery
Second most popular. They would lie and say the man slept with a woman. They would pay a woman to lie
on the stand and say that he slept with her.
Desertion
Cruelty
Most popular ground. They would collude. She would say he was cruel and he would say yes I was.
o If someone didnt want to get out of the marriage, the other person was screwed and couldnt get out of the marriage.
o Defenses
Now historical and no practice effect since no-fault divorce
They are:
Collusion
o Agreement between parties to say one committed adultery or another ground in order to obtain a
divorce.
Connivance
o Plaintiff consented to defendants martial offense
42
Condonation
o Continuance of cohabitation implies forgiveness on part of the spouse.
Recrimination
o Where plaintiff also engaged in a marital offense.
Unilateral v. Mutual Consent Divorce
o Unilateral: Marriage is a relationship between two people, and if one of those people has determined that it shall not continue,
this is plain evidence that the relationship has broken down.
o Mutual: Some states have more strict statutes, in which a divorce may be denied where the parties disagree on whether their
marriage is irretrievably broken.
Divorce Jurisdiction
o In the era before no-fault divorce laws, when many individuals traveled to another state or country to obtain a divorce,
jurisdiction and conflict of laws questions were at the core of domestic relations practice. Although migratory divorce is far
less common today, the complex framework of divorce jurisdiction remains in place. Jurisdictions in divorce cases is unusual
because the rules governing the courts jurisdiction over termination of a marriage differ sharply from the rules governing
jurisdiction over the financial aspects of divorce and the rules governing jurisdiction over child custody and support matters.
o Von Schack v. Von Schack (Maine 2006)
Personal jurisdiction is not required over the defendant where the plaintiff is a resident of the state and the order is to
render a divorce judgment that dissolves the parties marriage without determination of property division, parental
rights, or support.
Courts must uphold due process requirements of notice and an opportunity to be heard before granting an
ex parte divorce.
Must also consider defendants assertion of forum non convieniens.
Each state, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can
alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is
absent.
One state can grant a divorce of validity in other states if the applicant has a bona fide domicile in the state of the
court purporting to dissolve a prior legal marriage.
Domicile is physical presence in the jurisdiction with the intent to remain there.
Ex parte divorce proceedings are good for public policy reasons.
However, the Court has held that where child contact and support are in issue, personal jurisdiction is required.
Also, a court may not issue a divorce decree where the spouse seeking the divorce and the spouse not present are
both not domiciled in the state.
Know that Williams I relates to divisible divorce
o Divorce Jurisdiction
A court may have jurisdiction to terminate the marriage, but not divide marital property, to order the payment of
alimony, or child support, or to determine parental responsibilities for children of the marriage.
o Residence and Domicile
Statutes in all states define the connection that a petitioner must have with the state in order to obtain a divorce there
typically permitting a petitioner to file a divorce action if he or she has resided in the state for a specified time
period.
Residence and domicile are often used interchangeably in this context but in some jurisdictions domicile is not
sufficient if the petitioner resides somewhere else.
o Notice and an opportunity to be heard
Must be reasonably calculated under the circumstances to apprise interested parties of the pending action and afford
them an opportunity to present their objection.
o Same-Sex marriage and Divorce
States that do not permit same-sex marriage couples to marry have reached different conclusions about whether they
have jurisdiction to divorce them.
Some say they do and some say they dont.
o Dissolving Civil Unions and Domestic Partnerships
Same requirements as dissolution of marriage
Same problem with states that do not recognize the partnership as the states that do not recognize gay marriage
Some states have in their laws that by entering into the civil union or domestic partnership you consent to the
jurisdiction of the state (to prevent the party from moving and the other party being unable to exercise jurisdiction
over them any longer).
Financial Remedies
43

o
o
o
Divorce has significant financial consequences

Contemporary divorce laws emphasis that both parties contributions to the partnership should be recognize and
compensated when the partnership ends.
All states provide for division of property and spousal support awards at the time of divorce.
Long-term spousal support orders are rare, but transitional support orders are more common with the goal of
assisting a financially dependent partner in becoming economically self-sufficient.
Property Division
First, parties identify and locate all of the property owned by either spouse as well as liabilities.
In many states, they must also classify these assets either as separate property or as marital or community
property depending on the jurisdiction.
Assets must be valued, sometimes by an expert witness.
Finally, the parties or court will decide on an appropriate division of assets and liabilities between the spouses in
their settlement negotiations or litigated proceeding.
deCastro v. deCastro (Mass. 1993)
Justice and equality require that both the financial contributions in the accumulation of assets and the non-financial
contribution in raising children and taking care of the home must be taken into account when dividing marital
property.
The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in
value of their respective estates and the contribution of the parties as a homemaker to the family unit.
Established the marriage if partnership theory
Judge may take into account all relevant factors.
Because of the womans contribution, the man was able to work.
She took care of the kids, raised them, they did
Bottom line though: We assume that both of them have contributed in some shape form or fashion to the partnership.
Marital and Community Property
Marital property
Most states are marital property states
Require the court to classify the property owned by the spouses as either marital or separate an then
authorize the divide of all marital property.
Martial property is typically defined as all property acquired during the marriage except property acquired
by gift, devise or descent; property acquired in exchange for property acquired by gift, devise or descent; or
property excluded by agreement of the parties.
o Dont comingle your inheritance with your marital money in the joint bank account.
In a few states, the statutes permit division of separate property as well as marital property where the
division of marital property alone would be unfair.
Property you have before the marriage is separate property.
All courts start with a presumption of a 50/50 split.
Hotchpot Approach
About fourteen states have statutes authorizing court to divide all the property owned by both spouses at the
time of the divorce, regardless of when, how or by whom the property was acquired or how the title was
held.
At the time of divorce we just divide the property.
Community property
During marriage, each spouse has an interest in any community property held by the other, and each spouse
has fiduciary obligations to the other.
As soon as you acquire something in marriage, except inherited property, you have a 50% interest. There is
a presumption of 50/50, but you can move off that for things like fraud.
The only real difference between community and marital property is when it is determined to be marital property.
Its automatic in community and its adjudicated by the court in marital.
Equitable Distribution
The shift towards equitable distribution and more generous property division awards for homemakers was an
important aspect of the divorce reform legislation of the 70s.
Marital Fault
Many state statutes provide explicitly that courts may not consider marital misconduct.
In contrast, Mass. Authorizes the court to take into account the conduct of the parties during marriage.
44

A few states have special rules for extreme or egregious misconduct, such as a serious felony or a pattern of physical
or emotional abuse.
Other states have permitted consideration of medical and financial needs that resulted from serious spousal abuse as
one factor in determining a marital property division.
There is a court split on whether you can show fault.
Economic Misconduct
Courts dividing marital property also consider financial misconduct such as waste or dissipation of assets, with or
without explicit statutory authority.
Dissipation is the disposition of marital property by a spouse in a manner designed to circumvent equitable
distribution.
In community property jurisdictions, fraud or waste of community assets may be taken into consideration in the
division of property at the time of divorce.
Marital Debt
In addition to dividing marital property, courts in a divorce case may allocate responsibility for payment of the
parties debts. Like assets, debts may also be classified as marital or separate.
Allocation of a joint debt by the court or the parties at the time of divorce does not affect the relationship between
the creditor and the spouses.
Tax Liability
Tax liability may be taken into account by a court as a factor in achieving an equitable distribution, particularly
when the spouses anticipate tax consequences as an immediate result of the property division, as is the case when
assets will be sold to facilitate the distribution.
Courts are typically unwilling to adjust the valuation of marital assets based upon the hypothetical future tax
liabilities, such as those involved in the sale of a business.
Middendorf v. Middendorf
Determining when appreciation in separate property becomes marital property for purposes of the division in of
property in a domestic relations case.
Marital property includes all income and appreciation on separate property due to the labor, monetary, or in-kind
contribution of either or both of the spouses that occurred during the marriage.
Separate property includes passive income and appreciation on separate property acquired other than as a result of
the labor, monetary, or in-kind contribution of either spouse.
Notes
Stockyard was separate property. The issue is whether the appreciation is marital property.
If either spouse contributes to the separate property to cause an appreciation, then it is marital property.
If it increase in value because of nothing either spouse does, then it is separate property because it is a
passive income.
Here, the court says that the pure fact of the husband just managed the business means it is not passive.
Marriage is partnership, so that is why it is either spouse and not just the one seeking the money.
Standard is quite low. Things that might make it maybe a stock on a long position, but Higdon says that the
decision not to sell could be called managing it.
Some property may have a mixed character, with their part of their value separate and part marital. Property
may also have mixed character if it was acquired using both separate and marital assets. E.g., one spouse
might use separate resources for the down payment on a house and marital funds to pay off the mortgage.
Transmutation and Commingling
Commingling
Results when separate and marital properties are inextricably combined, so that the respective contributions
of the two estates cannot be traced.
Based on a presumption that property acquired during marriage is marital or community property, this
mingling results in the combined asset being characterized as marital property.
E.g., marital and separate property were combined to improve a house, which was then sold and the
proceeds used to buy another house, which was ultimately treated as martial property.
Cant separate the property.
Transmutation
Occurs when a spouse transfers property during the marriage in circumstances suggesting that the spouse
intended to change its beneficial ownership from separate to marital property. The most common example
occurs when property that was purchased with separate funds is titled either in a joint tenancy or tenancy by
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the entireties. They is typically raises a rebuttable presumption that the owner intended to make a gift to the
marital estate, and the property becomes marital unless the owner is able to rebut the presumption.
In some states, transmutation can occur when a couple deals with their property as if it were marital.
o Marital and Separate Property
Many states apply a presumption that all property acquired by either spouse subsequent to the marriage and prior to
a decree of divorce or legal separation is marital property
Court must sometimes decide when a marriage has ended for community and marital property purposes.
In some states the marital community ends on the date of separation.
Although the courts may apply a high standard for what constitutes a sufficient separation.
In other states, the marriage does not end until a decree is entered.
o Source of funds rule
Court is willing to trace the source of the funds if it is not too difficult to do.
E.g., taking 20% of your inheritance and using it to buy a home. Court can say okay, 20% of the inheritance here
you go.
o In re the Marriage of McReath
Part of the rationale in creating the presumption of equal property division is that the homemaking partner has
contributed serves which have enabled the financially supporting partner to achieve his or her station in life, and in
doing so the homemaking partner has lost ground in the job market.
When valuing a business interest that is part of the marital estate for purposes of divorce, a court shall include the
value of the salable professional goodwill attendant to the business interest.
o Professional Goodwill
Many jurisdictions take the approach urged by Dr. McReath in the above case, attempting to distinguish between
enterprise goodwill, which may be marital property, and personal goodwill which belongs to the professional
spouse.
Other courts have ordered division of goodwill in a professional practice without making the distinction between
enterprise and personal goodwill.
There are also decisions holding that the goodwill of a professional practice is not property for purposes of equitable
distribution on divorce.
Some courts have found the goodwill of law practices to be marital or community property subject to equitable
division on divorce.
Other courts have concluded that the goodwill of a solo practitioners law practice cannot be divided on divorce as
marital or community property.
Good will is the reputation of a business of a business as being good.
In re Marriage of Olar
o Whether an educational degree constitutes marital property subject to division upon dissolution of marriage.
o An educational degree is not marital property.
o Pension v. degree
Pension is easier to value. You can tell what it is worth.
Education is hard to put a value on.
o Maintenance
Any time property is insufficient to divide, courts will consider alimony to compensate.
The threshold requirement for maintenance is reasonable needs which means the lifestyle they are used to living
and appropriate employment requires that partys economic circumstances and reasonable expectations established
during marriage be considered.
Note: New York does treat an educational degree as marital property.
Alimony
o Harder to justify today because:
Woman have better employment opportunities
The marriage model has changed. Now you have people 30+ getting married who both have already started a career.
More women start the relationships with careers.
It incentivizes getting married.
The absence of fault. Alimony largely came from fault in the marriage.
The marriage is partnership theory:
We are going to look to see what you built while you were married and divide it.
If we have divided equally what you had together, why should we make one party continue to give to the
other if we have divided everything equally?
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After you are divorced, everything that the parties gain are separate properties, so why should we make the
husband give his separate property?
o When it is justifiable
When there is insufficient marital property
o Factors
Age
Fault
Duration of the marriage
What they gave
Earning potential
Health/ physical condition of the party
Accustomed style of living
Demonstrated need during the post-divorce economic readjustment period.
Time need to make the post-divorce transition to self-support
o Difference between alimony and property division
Property division is generally not modifiable
Alimony generally is modifiable. You can go back t the court and show that she makes more money/ he makes less
money/ she got remarried, etc.
In re Marriage of Hutchings (Okla. 2011)
o Issue: whether the trial court considered the relevant factors under Oklahoma law for determining an appropriate amount of
support alimony, and whether the trial courts award of support alimony was supported by the evidence.
The trial court only gave her $9,000. She wanted to pursue a social work degree, but she get a free education to
being a nurse with a pay cut but she didnt want to do that. Husband had lots of money as was doing very well
o Alimony amount must be reasonable.
Court hear focused on earning potential and length of the marriage.
o Notes
In the absence of alimony, it can always encourage the parties to pursue their career so they wont be left high and
dry if they get divorced.
Between no fault and marriage as a partnership theory, alimony is very hard to justified
Where you do see it, it is more short term
If you see long term alimony, its because they were married for a vey long time.
When a husband goes from a high paying job to a lower paying job:
Imputed Income
o What he could be making in a job he is capable of doing
How hard did he look to find another job?
o Cohbitants
Palimony there can be a claim through implied contract to alimony for cohabitants.
In re Matter of Raybeck
o Woman was given alimony that would cease if she began to cohabitate with another man. She moved in with another man,
but theyre rooms were on separate sides of the house, they shared a common area, she didnt pay rent, she bought the
groceries, he may have been her boyfriend, and they had talked about getting married.
o Definition of cohabitation:
Cohabitation is a relationship between persons resembling that of marriage
Cohabitation encompasses both an element of continuity or permanency as well as an assumption of marital
obligations.
Because of this, many people are putting cohabitation clauses in there prenuptial agreements.
Rule of thumb: Define cohabitation in your prenuptial agreement!
You can also try to go back and try to get alimony modified based off her change in living expenses.
Plus she said that she did this to save money, so if she is costing less to live, he could get the change of
circumstances ruling to get it lowered by the amount she is now saving.
o Notes
Does the agreement say anything about cohabitation? If so, that may solve it
If it doesnt say anything about cohabitation, the court will look at change of circumstanceslike a reduction in rent
they may reduce his obligation of alimony to her by that amount.
Permanent alimony is alimony you pay until the other spouse dies or remarries.
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Contractual v. Decretal in
o If you do not merge your settlement agreement into the divorce decree, it stand alone as a contract. If you do merge it, it now
becomes decretal and you can challenge it on a divorce decree basis.
o If there has been a merger, the court can look at a change of circumstances.
o If it doesnt, then it stands alone as a basic contract.
Sahin v. Sahin
o If you merge the settlement agreement with the divorce decree, it can be timed barred by the one year limitation on
challenging the judgment.
o Notes
You can still merge the things from the settlement agreement that the court couldnt grant itself (like that you will
pay for college tuition).
The more you think that having change of circumstances in the future would be to your benefit, then you might want
to merge. The more you think that you dont want a change of circumstances, then you dont want to merge. MOST
of the time.
If you have a good contract and I mean good, having it not merged is probably the best policy.
Courts will normally default that it is merged, so you should tell them that you dont want it to be merged. You
should also put that you dont want it to be merged in the settlement agreement.
Obviously you can still come back and get more alimony if the decree is merged. It matters where the party wants to
come back and get more property.
Horner v. Carter (2012)
o Facts: Agreed to pay $500 a month for a housing allowance. Wife remarried. Husband fell behind on the housing payment
and then tried to say that it was alimony and so he didnt have to pay it anymore.
o The housing payment was more like a property settlement and not maintenance
It was under Real Estate and not Maintenance
He didnt treat it like alimony because when she got married he didnt try to quit paying it until 5 years later
This was in exchange for him getting to keep his pension.
Faherty v. Faherty (853)
o Husband put in the settlement agreement that they had to go to arbitration. It back fired on him. He then said that Arbitration
shall be vacated when the arbitrator exceeded his power
o Child Support
Only an arbitrator award that either reduced child support or refused a request for increased support could be subject
to court review, because only such an award could adversely affect the interests of the child. However, even awards
reducing support would be subject to court review only if they adversely affected the substantial best interests of the
child.
Substantial best interest of the child are not affected when the reduction in support or the denial of additional support
is petty or frivolous, but only when it actually and materially affect the childs standard of living.
PERSONAL JURISDICTION
Kulko v. Superior Court of California (1978)
o Issue: Whether courts may exercise in personam jurisdiction over a nonresident, nondomiciliary parent of minor children
domiciled within the State.
o Holding: the exercise of such jurisdiction would violate the Due Process Clause of the 14 th Amendment.
o A defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.
Is it reasonable and fair to haul him into court in California?
The father did not purposefully avail himself of the rights and benefits of California law by allowing his children to
stay with their mother more.
o To find personal jurisdiction in a State on this basis, merely because the mother was residing there, would discourage parents
from entering into reasonable visitation agreements. Moreover, it could arbitrarily subject one parent to suit in any State of
the Union where the other parents chose to spend time while having custody of their offspring pursuant to a separation
agreement.
o Buying his daughters plane ticket and not preventing her from going to California is no grounds for Cali to have personal
jurisdiction over him. He could not have reasonably anticipated being hauled into court over that.
o Notes
A ruling like this is more likely to produce flexibility in the family unit. Parents are more likely to allow the children
to live where they want to live. A ruling the other way may encourage parents to fight their children leaving.
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She could have gotten a divorce in Cali too (review of ex parte divorce)
PARENTAL RESPONSIBILITIES
Intro
o Al parents have significant moral and legal responsibilities for their children.
o Once parentage is established, this includes the obligation to provide financial support and these duties are now enforced
though complex administrative and judicial process involving both state and federal governments.
o Although parents have a broad right to determine their childrens upbringing, this principle does not provide a basis for
resolving disputes between parents over major decisions concerning the childs welfare.
When parents disagree, courts may be called upon to assign parental rights and responsibilities between parents
based upon the best interest of the child.
In some states, third parties with no legal status as parent may also claim a share of this responsibility.
Child Support
o Has become a cooperative project under state and federal law structured and funded under Title IV-D of the Social Security
Act
o Every state has adopted the Uniform Interstate Family Support Act (UIFSA)
Designed to help the process of collecting support across state borders
Every state has also adopted child support guidelines that use a numeric formula to establish a presumptive support
award, and all states have implemented a variety of child support enforcement techniques, including such measures
as suspending drivers licenses of delinquent obligors
o Establishing Jurisdiction
With our highly mobile population, first problem in child support case is establishing jurisdiction. Courts must have
personal jurisdiction over the potential obligor in order to enter a support order. This requirement generates
significant complications in the many cases in which the child in need of support does not reside in the same state
where the obligor lives.
Parker v. Alaska Department of Revenue (1998)

A person engaging in sexual intercourse with a resident of a state while in that state should foresee the
possibility that a child might be born and that a paternity and support action might be brought.
It is a specific act and the action is directly derived from the defendants conduct in the forum state.
Notes
o The clear answer is that if you are in a state and the person lives in that state you can be hauled
into court there. You are on notice that a kid can be born anytime you have sex, regardless of
protection.
o Seems like it goes back to if it is reasonably foreseeable to be hauled into court there.
o Bottom line: If you go to a state and have sex with someone in that state, you can be hauled into
court there. Otherwise, it gets murky but thats okay because we have UIFSA.
Personal Jurisdiction
Sexual intercourse within the state is a sufficient basis for specific jurisdiction over parentage and support
claims concerning a child who may have been born as a result.
State courts applying minimum contacts have concluded that other relatively minor connections between a
state are not sufficient basis for jurisdiction.
Uniform Interstate Family Support Act (UIFSA)
UIFSA provides that a states courts will have jurisdiction over an individual for purposes of litigating
support if the child lives in the state as a result of that persons acts or directives.
Provides a two-state process when personal jurisdiction is not possible in the state the plaintiff wants to
bring the action. A support proceeding may be commenced in one state and transmitted to the support
enforcement agency of another state where it is possible to obtain personal jurisdiction over the respondent.
Notes
o You can file in California and California can communicate in New York, adopt the action, and
enforce it against the father.
Inconvenient Forum
Under the doctrine of forum non conveniens, a court with personal jurisdiction may decline to exercise
jurisdiction if there is a more convenient forum in which to resolve the dispute.
UIFSA does not provide for forum non conveniens and courts are split as to whether it should be read into
the statute.
o Department of Human Services v. Leifester (Maine 1998)
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If paternity has been determined or has been acknowledged according to the laws of this State, the liabilities of the
father maybe enforced in the same or other proceedings by the mother, the child or the public authority that has
furnished or may furnish the reasonable expenses of pregnancy, confinement, education, support, or funeral
expenses. Ch. 7 Subchap. I-A applies to an award of past support, which is calculated by applying the current
support guidelines to the period which past support is owed.
The law required the court to use the child support guidelines for the time period the support was owed when
awarding child support retroactively.
Notes
Wife lives in Maryland husband live in Maine. Wife said that it was okay for him not to pay for child
support. She applied for welfare, and then the state came after the father for back child support.
He isnt subject to jurisdiction in Maryland and they have to have the action transferred to Maine to get the
support from him.
What a child should get is based off a percentage of the income the parents make.
Takeaway
o How the Uniform Act works and why it is necessary
o Be aware of the concept of arrears. What is the policy for that? You have a duty to a child. If you
know you have to pay it no matter what, it will make fathers pay now instead of trying to avoid it.
Also, a state is trying to recoup money that it gave to a wife for welfare.
Two-State Proceeding
Arise when there is no existing support order and it is not possible to obtain jurisdiction over the respondent in the
state where the child and the party seeking support reside.
Must establish paternity
When there is already a support order in place in another state, the two-state proceeding may be used to enforce the
support order in another state.
May be required if either party seeks modification of an existing support order.
Process:
(1) Paternity must be established.
(2) Begins in court in state where the jurisdiction is sought (initiating tribunal).
(3) Sent to a responding tribunal which applies its own procedural and substantive law, including rules of
choice of law to its determination of parentage or establishment of a support order. If the responding
tribunal is enforcing an order entered in another state, however, the law of the issuing state governs the
nature, extent, amount, and duration of current support payments and the computation and payment of
arrearages.
Retroactive Child Support
May date back to the childs birth
The court may limit the fathers liability for past support of the child to the proportion of expenses already incurred
that the court deems just.
Some states do not allow retroactive child support awards. E.g., Wisconsin.
Can it be barred by laches? Courts differ
In Carnes, the court allowed an emancipated adult child to pursue a paternity determination and retroactive support
from birth through emancipation from her biological father.
Lauderman v. Wyoming Department of Family Services (2010)
Mother was voluntarily unemployed at the time of the hearing, so the court imputed an income to her.
As demonstrated in Lauderman, the problem of determining what is income for a parent who is self-employed or
who operates a business raises many difficult questions, e.g., whether acquisition of a capital asset constitutes an
ordinary and necessary business expense, the proper treatment of depreciation expenses, etc.
Court imputed income to wife because she lost her job and she could have gotten a similar job but didnt
apply for them b/c she wanted to stay with the kids.
They based the husbands income off his 2008 year instead of his 2007 year. Court said that husband wasnt
going to be able to pay if they based it off his good year because it probably wasnt going to happen again.
Also, did not factor in draws he took from the business because that was already earned income in the
business and not income.
Child care: some states take this into account and some states dont.
The court will take time to look to see what your imputed income should be.
Irregular Income
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For support obligors with income that fluctuates significantly from year to year, a court may average several years
income and use that figure to determine an appropriate support award.
State courts and legislatures take different approaches to the treatment of inheritances, trust distributions, and nonrecurring items of income such as a lump sum personal injry settlement or capital gains on the sale of an asset.
E.g., gift inheritance is income v. gift inheritance not being income
Even if the corpus of such a payment is not income, the interest or other income the funds generate may be
considered as income.
In re the Marriage of Little (Ariz. 1999)
What standard should courts apply in determining whether a non-custodial parents voluntary decision to leave his
or her employment to become a full-time student constitutes a sufficient change in circumstances to warrant a
downward modification of the parents child support obligations.
A court should modify a child support order only if a parent shows a substantial, continuing change of
circumstances.
When a parent is unemployed or working below his or her full earning potential, a trial court calculating the
appropriate child support payment may impute income to that parent, up to full earning capacity, if the parents
earnings are reduced voluntarily and not for reasonable cause.
A trial court may elect not to impute income if he is enrolled in reasonable occupational training that will
establish basic skills or is reasonably calculated to enhance earning capacity.
A parent's child support obligation is paramount to all other financial obligations, and a parent has a legal
duty to support his biological and adopted children.
Three different kinds of test to determine whether child support can be modified when a parent voluntarily
terminates his employment:
(1) good faith testconsiders the actual earnings of a party rather than his earning capacity, so long as he
or she acted in good faith and not primarily for the purpose of avoiding a support obligation when she or he
terminates employment.
o Flaws
Assumes that a divorced or separated party to a support proceeding will continue to make
decisions in the best overall interest of the family unit
Fails to attach significant importance to a parents existing obligation to support his
children.
Parent can do whatever they want as long as its not motivated by a desire to shrink child
support payment.
After the party gives their good faith reason, the burden is on the other party to prove
its a sham
(2) strict rule testdisregards any income reduction produced by voluntary conduct and looks at the
earning capacity of a party in fashioning a support obligation.
o Flaws
Too inflexible
Does not allow for any consideration of the parents individual freedom or of the
economic benefit that an result to both parent and children from additional training or
education where a parent voluntarily leaves employment
Parent could be miserable
Child could benefit in the long run from the parent achieving the higher degree.
(3) intermediate testbalances various factors to determine whether to use actual income or earning
capacity in making a support determination.
o Child support is primary and other financial obligations are secondary
o If a reduction in child support due to non-custodial parents voluntary decision to change his or her
employment status places a child in financial peril, then the court generally should not permit a
downward modification.
o In many instances, the financial impact will not be so severe as to put the child in peril. In these,
the court will determine the reasonableness of parents voluntary decision to terminate
employment and return to school.
o Court should ask:
Whether the parents current educational level and physical capacity provide him with the
ability to find suitable work in the marketplace.
If so, less reasonable
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Notes
If additional training is likely to increase the parents earning potential

If so, more reasonable
Length of educational program
Matters is the children are young enough to benefit from the increased education
Whether the parent can finance the support obligations while in school.
If so, less reasonable to reduce.
Whether decisions is made in good faith
Will not be reasonable and in good faith if done to avoid child support
obligations.
Not exhaustive. Court is to decide each case upon the best interest of the child and not the
convenience or personal preference of the parent.
In alimony, if you get a better job after the divorce and your alimony was sufficient, your alimony will not
go up. But your child support will because it is always in the best interest of the child to get more money.
We have to balance the parents fundamental right to raise the child with the childs best interest when there
is a family unit. When divorce occurs the right to raise the child as you see fit is weakened and state interest
in loco parentis increases.
Imputed Income
Courts may impute income to a parent who is unemployed or underemployed in an initial support determination or a
support modification
Courts may also impute income to an unemployed custodial parent.
Incarcerated child support obligors
Many courts view this as involuntary employment and modify
Others refuse to reduce
Other say it isnt a sufficient basis but may be taken into account in deciding whether to modify support
Modification of Support
Child support orders may be modified upon proof of a substantial change in circumstances
Because child support orders are issued by the court, they cannot be modified by private agreement without court
approval.
Each installment due under child support becomes vested as a final judgment when it accrues and goes unpaid. This
is why past payments cant be modified.
Under some statutes, you can have child support retroactively increased if the party ahs misrepresented or failed to
disclose income or other relevant information.
Termination of Child Support
Ends when the child reaches the age of majority or otherwise emancipated
Emancipation occurs generally when the child marries, enlists in the military, or leaves home and becomes selfsupportive.
In most states, parties may stipulate in a separation agreement or consent judgment that child support will continue
beyond the usual age of majority.
State law may provide that the parents support obligation terminates when they die or that it does not end and
becomes a claim on the estate.
In most states, support obligation ends when parental rights are terminated.
Child support obligations also end when paternity is disestablished.
Child Support Determination
Percentage of Income Model
A state that has adopted this model looks at your money and the amount of kids you have to determine your
child support amount.
Going into this, you know what you are gong to have to pay.
Looks real nice and simple, but this assumes one person has custody and the other does not.
Income Shares Model
Take into account how many children you have and then they look at the combined earnings of the mother
and the father on a monthly basis
If the combined earnings is X, the child gets Y from both parents. So if they both make the same amount,
they will both pay half, and by pay, this means they will pay it to each other.
Who tends to get screwed are the children of the very rich, because it only goes up so high.
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Basically you look at the combined monthly income of the two parents
o E.g., if you jointly make $4,000 a month, then the kid is going to get $400. Lets say the mother
contributes $3k and the father $1k. So the mother will contribute $300 and the father $100.
o This works best when they have equal time with the kids.
o KNOW THESE -- Child support
Not the interstate uniform family support act and why we need it and how this fits with the divisible divorce
Know the concept of imputed income and how it fits into this stuff
Know that you are subject to long arm jurisdiction if you have sex with someone in the state and a baby is born
Know that you can modify child support: know the good faith, strict, and intermediate test.
Know the difference between income share and percent of income model. Know we have this because before judges
just awarded whatever they felt was necessary and this gives us more guidelines.
Jurisdiction: Working With UCCJEA
o Any state with a substantial interest in the childs welfare might take jurisdiction of a custody case. Uniform Child Custody
Jurisdiction Ac (UCCJA). Adopted in every state.
o By providing concurrent jurisdiction in more than one state, UCCJA created the possibility of competing jurisdiction and
contradictory decrees entered by courts in different states.
o Because of the rule that child custody decrees always remain subject to modification to protect the childs best interests, they
were not generally seen as subject to the constraints of the Full Faith and Credit Clause
Congress enacted Parental Kidnapping Prevention Act (PKPA) to address problem of interstate recognition an
enforcement of custody decrees.
Differences between UCCJA and PKPA created confusion and complexity
o Lawyers now work with Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Eliminated some of the difficulties that had arisen under the UCCJA and works more effectively with the PKPA and
the federal Violence Against Women Act
Every state adopted except Massachusetts.
"Home state" is defined in the Act:
(7) `Home state' means the state in which a child lived with a parent or a person acting as a parent for at
least six consecutive months immediately before the commencement of a child custody proceeding. In the
case of a child less than six months of age, the term means the state in which the child lived from birth with
a parent or a person acting as a parent. A period of temporary absence of a parent or a person acting as a
parent is part of the period.
Tex.Fam.Code Ann. 152.102(7)(Vernon Supp.2002). In turn, "commencement" as used in the definition
"means the filing of the first pleading in a proceeding." TEX. FAM.CODE ANN. 152.102(5).
Commentary suggests that although the definition of "home state" has been reworded slightly, no
substantive change from the UCCJA was intended. Sampson & Tindall, Texas Family Code Annotated
152.102, Commissioners' Comment p. 470 (2001).
Section 152.201 provides the hierarchy for determining whether a state has jurisdiction to make an initial child
custody determination: 152.201. Initial Child Custody Jurisdiction
(a) Except as otherwise provided in Section 152.204, a court of this state has jurisdiction to make an initial
child custody determination only if: (1) this state is the home state of the child on the date of the
commencement of the proceeding,2 or was the home state of the child within six months before the
commencement of the proceeding and the child is absent from this state but a parent or person acting as a
parent continues to live in this state; (2) a court of another state does not have jurisdiction under
Subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground
that this state is the more appropriate forum under Section 152.207 or 152.208, and: (A) the child and the
child's parents, or the child and at least one parent or a person acting as a parent, have a significant
connection with this state other than mere physical presence; and (B) substantial evidence is available in
this state concerning the child's care, protection, training, and personal relationships; (3) all courts having
jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of
this state is the more appropriate forum to determine the custody of the child under Section 152.207 or
152.208; or (4) no court of any other state would have jurisdiction under the criteria specified in
Subdivision (1), (2), or (3).
In re Interest of Brilliant (Tex. App. 2002)
o Child was born in Mass. And the she move to Texas with the child
o Issue: who has jurisdiction?
o Home state has priority. Know this stuff.
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Home state means in which the child lived for at least 6 months before the commencement of the proceeding.
If the child is less than 6 months it is the state the child lived from birth
Priority goes to home state for custody hearing. If the state is is not home state it might still have jurisdiction if:
(1) No other state is the home state or home state declined jurisdiction;
(2) The child and the childs parent have a significant connection with this state other than a mere physical
presence; and
(3) Substantial evidence is available in this state concerning the childs care, protection, training, and
personal relationships.
A temporary absence from a state is not enough to reject the state as a home state
o E.g., in this case, the wife transferred everything (shot records, changed address, etc.) to Texas.
Evidence established that she planned on moving there.
Lets say she takes the child back to Mass. And he decides he wants full custody. He goes up to Mass. For Custody
and not we have the non-Mass. parent filing in Mass. Mass. doesnt have jurisdiction b/c Texas is still the home
state. Texas would first have to decline jurisdiction b/c there is a more convenient forum.
o 202 Exclusive, Continuing Jurisdiction
(a) Except as otherwise provided in Section 204, a court of this State that has made a child-custody determination
consistent with 201 or 203 has exclusive, continuing jurisdiction over the determination until:
(1) a court of this State determines that neither the child, nor the child and one parent, nor the child and a
person acting as a parent have a significant connection with this State and that substantial evidence is no
longer available in this State concerning the childs care, protection, training, and personal relationships; or
(2) a court of this State or a court of another State determines that the child, the childs parents, and any
person acting as a parent do not presently reside in the State.
o Know why we have all this and what it prevent (kidnapping kids, inconsistent verdict, and forum shopping). Know home
state, know how we can go to the #2 state.
In re Marriage of Kovacs
o The Parenting Cat of 1987 does not create a presumption in favor of placement with the primary caregiver. Act requires
consideration of 7 factors and provides that the childs relationship with each parent be the factors given the greatest weight
in determining the permanent residential placement.
o The best interests of the child are served by a parenting arrangement that best maintains a childs emotional growth health
and stability, and physical care. Further, the best interest of the child is ordinarily served when the existing pattern of
interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or
as required to protect the child from physical, mental, or emotional harm.
o The objectives of the permanent parenting plan:
Provide for childs physical care
Emotional stability
Changing needs as child grows and matures in a way that minimizes the need for future modification
Set forth the authorities and responsibilities of each parent.
Minimize childs exposure to harmful parental conflict.
Encourage parents to meet the needs of the child through agreement and not through judicial intervention
To otherwise protect the best interest of the child
o The court shall make residential placement for each child which encourage each parent to maintain a loving, stable, and
nurturing relationship with the child, consistent with the childs developmental level and the familys social and economic
circumstances.
o Factors:
(i) the relative strength, nature, and stability of the childs relationship with each parent, including whether a parent
has taken greater responsibility for performing parenting functions relating to the daily needs of the child
(ii) the agreements of the parties, provided they were entered into knowingly and voluntarily;
(iii) Each parents past and potential for future performance of parenting functions
(iv) The emotional needs and development level of the child;
(v) the childs relationship with siblings and with other significant adults, as well as the childs involvement with his
or her physical surroundings, school, or other significant activities.
(vi) the wishes of the parents and he wishes of a child who is sufficiently mature to express reasoned and
independent preferences as to his or her residential schedule; and
(vii) each parents employment schedule, and shall make accommodations consistent with those schedules.
Factor (i) shall be given the most weight.
UMDA 402 Best Interest of Child
54

o
o
o
o
o
o
(1) the wishes of the childs parent or parents as to his custody;

(2) the wishes of the child as to his custodian;
(3) the interact and interrelationship of the child with parent or parents, his siblings, and any other person who may
significantly affect the childs best interest;
(4) the childs adjustment to his home, school, and community; and
(5) the mental and physical health of all individuals involved.
The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.
Class Notes
At common law father had primary custody of his children
During 19th century courts began to award custody to mothers, and eventually began to assume that children of tender years should
be placed with their mother.
Today, we decide custody arrangement based on what is in the childs best interest.
Two types of custody:
o Physical
Actual possession of the child
o Legal
Right to make decisions based off how the child is going to be raised.
In re Marriage of Kovaks (see above)
o We look to see what is in the best interest of the child.
o The is a departure of the tender years doctrine because the mother was normally the primary care giver.
Rodrigue v. Brewer (p. 996)
o Mother is complaining about the educational upbringing in the parental rights and responsibilities in the parenting plan.
Father got to decide education because he was really smart. Mother got to decide religion.
o This is a high-conflict divorce. Court ultimately upheld it.
o Dissent: Yes, the trial court ahs the discretion to fashion some custody agreement in the best interest of the child. Instead, the
court is bound by the rules of equity regarding custody and the best interest of the child. The father was given the right to
choose education, he could place the child in any school and will affect where the child lives. Bottom line: the trial court was
trying to dilute the conflict and not figure out what is in the best interest of the child.
Miller v. Smith (p. 1007)
o Facts: Dad is not taking the kids to gymnastics
o Mother says that she is trying to develop plans for the daughter, and if he does not take her to gymnastics, it undermines her
plans with the daughter.
o Court says that one parent cant dictate how the other parent must spend their time with the child.
o Note: A parenting plan can be very specific. It can state that the father must take the child to gymnastics and be attempted to
be enforced. But remember, the court doesnt want to get too deep into other peoples crap. Theyll say, like here, figure it
out.
Parenting Plans
o Have a better chance of success if parents arrive to the agreement on their own terms
o Three parts of parenting plan: 979
o Helps to not take up judicial resources.
Colona Case
o He makes a lot of money. Then he makes less money. He has primary custody of the child. Lower court says he doesnt have
to pay child support. It was reversed.
o Holding: The court says that they must maintain the standard of living. A parent with primary custody can be enforced to pay
child support to the other parent where there is a great disparity in incomes.
o Dissent: This is income redistribution.
Annulment Case
o After you have consummated a marriage, you can still get an annulment. One of the reasons is fraud.
o Facts: wife loves her job. Husband lied to her and didnt tell her he was a convicted felon. She got fired from her job as a
correctional officer because he was a convicted felon and it created a conflict.
o Test for an Annulment:
Whether the false representations or fraud went to the heart of the marriage.
Very subject standard. It can be something as subject as the person being a felon.
o Notes
55
There isnt exactly a time limit on annulment but the longer the harder to get one.
Court doesnt want to make illegitimate children.
If it is something weird like this, you have to show that you showed up front that it goes to the heart of your
marriage.
Something like having children or consummating the marriage is sort of implied.
Reasons for annulment over divorce:
Dont have to divide property or pay support. If you a rich person, you would want to get the wedding
wiped off the slate.
Divorce can be considered a sin
Annulment wipes the slate clean.
Consummation is a ground for divorce. If there has been consummation, you have to show that there is fraud that
goes to the heart of the marriage.
Lowenshuss Case
o Marriage by Estoppel
Its something you should know in conjunction with putative spouse, common law marriage, etc. If you have been
together for a while, the court is going to bend over backwards to say that you are marriage.
o Facts: W lived in Penn. Went to Alabama to get a divorce b/c they probably had a relaxed domicile requirement. However,
you have to be a citizen of the state and she did not meet the residency requirement. Every state requires a resident
requirement. She just went down there for a couple of days and got the divorce. She came back and got married to H. He
thought that the divorce was valid when they got married. He files for divorce but finds out that their her divorce was invalid
and she is still married to the first guy. What one would normally do here is file for an annulment to declare the marriage as
void. Instead, he just says were not married but we can still live together. He started filing single on his tax returns. He
told some close friends they werent married but they seemed to still hold themselves out that they are married. Then shes
has had enough and files for divorce. He then says we cant get a divorce because were not married. Lower court says that
the marriage was invalid and she got nothing.
o Equitable Estoppel in Divorce
[a] person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it
would be inequitable for him to do so.
this type of estoppel is . . . not limited to situations of "true estoppel" where one party induces another to rely to his
damage upon certain representations. The rule may be applied whenever, under all the circumstances, it would be
inequitable to permit a particular person to challenge the validity of a divorce decree. Such inequity may exist when
action has been taken in reliance on the divorce or expectations are based on it or when the attack on the divorce is
inconsistent with the earlier conduct of the attacking party.
o Notes
Lower court used classic estoppel claim where they say that she didnt rely on anything because she knew that he
was married.
On appeal, she wins
Fact switch: If she was the one trying to stop the divorce, the court will not let the wife rely on her invalid divorce to
prevent a divorce decree. Here, the husband is trying to use her invalid divorce. The court says it will inequitable for
him to benefit from the invalid divorce because he used the divorce to look married but if there is ever a divorce he
would get to keep everything.
Heck, apparently you can still be estopped even if you dont find out that the divorce was invalid until she brings a
divorce claim against you.
A court is going to bend over backwards to find a valid marriage: common law marriage, putative spouse, marriage
by estoppel, etc.
Much broader approach because there is an urge to find a valid marriage. It can be applied against either party. One
reason is because we dont want to have illegitimate children.
56

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Common Law and Punitive Marriage

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Lewis v. Anderson, 173 S.W.3d 556 (Tex. App. 2005)

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Tennessee doesnt recognize common law marriage.

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Chapter 1: Marriage and Its Alternatives

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PROTECTIONS FOR NONMARITAL FATHERS

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Scholars have come up with a 3 prong test Biology+ Rule:

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You cannot consent before birth

Fraud and Duress

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filed in the state paternity registry as the biological father; and

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The NJ statute in the case provided the following:

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Assisted Reproduction Technology

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FAMILY RIGHTS AND RESPONSIBILITIES

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In Interest of KF (Iowa 1989)

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Divorce has significant financial consequences

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Parker v. Alaska Department of Revenue (1998)